National Consumer Disputes Redressal
Dr. Satish C.Gupta vs Raj Kumar Narula on 7 April, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 288 OF 2006 (Against the order dated 03/04/2006 in Appeal/ Complaint No.105/1998 of the State Commission, Delhi ) DR. SATISH C. GUPTA 16, Bunglow Road Delhi-110007 ........ Appellant (s) Vs. RAJ KUMAR NARULA R/o Flat No.13, Priya Apartments Sector-13, Rohini New Delhi NEW INDIA ASSURANCE COMPANY LIMITED 1/704, G.T. Road, Shahdara Delhi-32 ........ Respondent (s) FIRST APPEAL NO. 279 OF 2006 (Against the order dated 03/04/2006 in Appeal/ Complaint No.105/1998 of the State Commission, Delhi ) RAJ KUMAR NARULA R/o Flat No.13, Priya Apartments Sector-13, Rohini New Delhi ........ Appellant (s) Vs. DR. SATISH C. GUPTA 16, Bunglow Road Delhi-110007 NEW INDIA ASSURANCE COMPANY LIMITED 1/704, G.T. Road, Shahdara Delhi-32 ........ Respondent (s) BEFORE: HON'BLE MR. JUSTICE K.S. GUPTA, PRESIDING MEMBER HON'BLE MR. S.K. NAIK, MEMBER For the Appellant in : Ms. Mala Narayan, Advocate with FA/288/06 and for Respondent No.1 Ms. Meenakshi Arora, Advocate in FA/279/2006 For the Respondent No.1 in : Shri S.K. Sharma, Advocate FA/288/06 and for the Appellant in FA/279/2006 For the Respondent No.2/ : Ms. Nanita Sharma, Advocate Insurance Company in both cases Dated :_7.4.2008 ORDER
PER S.K. NAIK, MEMBER These two appeals, one filed by Dr. Satish Gupta, opposite party No.1 and the other by Shri Raj Kumar Narula, the complainant are directed against the order dated 3.4.2006 passed by the State Commission in complaint case No.C-105/1998. Hence, these are being taken up together for consideration.
2. For the sake of convenience, we continue to refer Shri Raj Kumar Narula as the complainant and Dr. Satish Gupta as OP No.1 and New India Assurance as OP No.2 during the course of discussion in these appeals.
3. Vide the order stated above, the State Commission arrived at the finding that the complainant lost his vision due to the negligence of the opposite party in not removing the silicon oil for more than two years inspite of the fact that he had examined him on as many as 26 occasions knowing it well that retention of silicon oil in the eye for such a long time can promote cataract, cause glaucoma and damage the cornea further with the chances of corneal abnormalities in the eyes randomized to silicon oil remains high. The State Commission, therefore, allowed the complaint and awarded compensation of Rs.50,000/- for mental and physical injury and further imposed cost of Rs.10,000/- on the opposite parties.
4. Aggrieved against the order of the State Commission, opposite party No.1 Dr. Satish C.Gupta has filed appeal No.288/2006 on the ground that the State Commission has erred in holding that he was negligent. Amongst other grounds, the appellant has also pleaded that the State Commission has further erred in not appreciating the fact that the complainant suffered from pre-disposition to retinal detachment which is a genetic disorder and it was a case of bilateral disease which affects both the eyes. Accordingly to him, the State Commission ought to have appreciated that the appellant cannot be held responsible for exercising the best option according to his judgment for the treatment of the complainant. He has therefore prayed that the order of the State Commission be set aside.
5. The complainant on the other hand has filed appeal No.279/2006 on the ground that while the State Commission has held that opposite party No.1 is guilty of medical negligence, it has awarded a meager compensation of Rs.50,000/- against his prayer of Rs.14,55,000/- and, therefore, the impugned order passed by the State Commission be modified to enhance the compensation of Rs.50,000/- to Rs.14,55,000/- as prayed by him.
Facts of the case ----
Shri Raj Kumar Narula, the complainant who had already lost vision in his right eye about five years earlier approached opposite party No.1, Dr. Satish C. Gupta with complaint of diminishing vision in his left eye on 31.3.1994. Opposite party No.1 examined him. On being diagnosed as a case of immature cataract and detecting that there was a small hole in the retina, he advised the complainant to get the retinal detachment disorder operated first to be followed by the cataract operation.
Accordingly, the operation to set right, the retinal detachment was conducted on 3.4.1994. After a gap of two months, thereafter, cataract operation was conducted on 8.6.1994, after the retina had properly settled. Even though there are conflicting dates with regard to what followed thereafter, the fact is that, during a subsequent check up by OP No.1, it was noticed that the retina had got detached and therefore on 26.6.1994, another fresh retina detachment operation was undertaken. Subsequent thereto on 7.7.1994 there was yet another recurrence of retina detachment due to the shrinkage of vitreous. OP No.1 thereafter undertook Vitrectomy (removal of the diseased vitreous) and injected silicon oil. For two years, thereafter, things appear to have been all right and the condition of the complainant was being monitored by OP No.1 through check up from time to time. However, complications started appearing from June 1996 and in Dec., 1996, it was noticed that the complainant had suffered from Bullous Kerotopathy and finally on 7.1.1997 corneal grafting was undertaken after removal of silicon oil as he had developed corneal opacity.
It was only thereafter that the complainant visited the AIIMS on 18.2.1998 where he was examined by the doctor in OPD who stated that he had lost his vision due poor surgical prognosis.
It was then that the complainant felt that there has been negligence by OP No.1 Dr.Satish C.Gupta and filed the complaint before the State Commission on 13.4.1998 claiming compensation of Rs.7,55,000/- subsequently increased to Rs.14,55,000/- resulting in the order being impugned before us.
We have heard the learned counsel for the parties who have argued their respective cases at great length. We have also perused the records of the case.
Learned counsel for the complainant has contended that OP No.1 conducted as many as five operations on the left eye of the complainant and charged a hefty sum of Rs.4000/- and yet the complainant lost his total vision : all due to the negligence of the OP No.1 doctor.
He has laid his total emphasis on three aspects of the treatment to prove that the OP No.1 doctor was negligent and that the course/method of treatment adopted by him was not the most modern and appropriate.
Ground No.1 Firstly, he flays the OP No.1 doctor on his choice of undertaking Retina Detachment operation first and cataract later. Learned counsel contends that since it was diagnosed as advanced nuclear cataract and not immature cataract as the OP has been trying to shift his stand ; cataract surgery should have been done prior to retinal detachment operation because removal of advanced cataract would have allowed more light to fall on the retina to facilitate a clear view of the retina.
On this point he has drawn support from opinion expressed by two eye hospitals, namely Sahai Hospital and Research Centre, Jaipur (page 110 of FA No.279/06) and Centre for sight (p.111 ibid). Besides Dr.Charles, a retina expert opined that in such a situation cataract surgery is recommended first, then Vitreoretinal Surgery.
Stand taken by OP on Ground I. The OP has defended the decision to go for Retina Detachment surgery first because at the time of examination, the cataract on the left eye of the complainant was not so dense as to obscure the view of the retina. As could be seen from the diagram drawn on the case record, the OP No.1 had clearly seen the detached retina with the help of ophthalmoscope and drawn the diagram indicating its exact dislocation.
The objective behind removing the cataract being better visualization of retina as has been pointed out even by the hospital/expert opinion referred to by the complainant, it was not an impediment in the instant case.
With regard to why retinopathy was conducted first, the counsel has contended that in the peculiar background of the complainant having lost his vision in his right eye five years earlier, it was the best judgment of OP No.1 that any delay in attending to retina detachment would lead to irreparable blindness due to Proliferative Vitreo Retinopathy. Since cataract would have taken precedence only if the retina was not visible which was not the case here, the counsel contends that the complainant has raised this issue out of sheer frustration.
Our view on ground I In our view the controversy raised by the complainant with regard to immature cataract and advanced nuclear cataract is superfluous because once the detachment of the retina has been detected by the use ophthalmoscope without any difficulty ; the prime consideration thereafter was to decide whether retina detachment surgery should take precedence/priority over removal of cataract. As has been rightly contended by the counsel for the OP No.1 doctor it was in the best interest of the complainant that retina detachment surgery was undertaken at the earliest to prevent PVR to set in. This was the best course according to the best judgment of the OP doctor and even if there be other view on the subject, the OP doctor cannot be held negligent.
In Vinitha Ashok Vs. Laxmi Hospital & Ors. I(2002) CPJ 4 (SC), the Supreme Court has held that where two views are possible, no negligence can be attributed to the doctor.
In this case, Dr. Cyrus M.Shroff and Dr. S.K. Narang, two eminent specialists have supported the line of management followed by OP No.1 doctor. Dr.S.K. Narang in his opinion has stated that :
The line of management followed by Dr.Gupta is according to the standard norms followed in such cases especially the operation of retina detachment before the cataract operation was a better option because if cataract is operated first then RD surgery has to be delayed for a month which reduces the chances of success of RD surgery.
Emphasis supplied Opinions obtained from some doctors by the complainant through a standard query on e-mail are reproduced below :
My father aged 60 years has advanced nuclear cataract and retinal detachment (with sub-total interior upper Tem break. Both in his left eye, which of the following is advisable
(i) Advanced Nuclear cataract surgery and then followed by retinal detachment surgery.
(ii) Retinal detachment surgery and then followed by advanced nuclear cataract surgery.
(iii) Or any other valuable suggestions.
(i) Opinion of Dr. Mahipal Sachdeva of Centre for Sight on this reference is as under :-
Both can be done simultaneously in the same sitting after complete evaluation.
(ii) Opinion of Dr. Charles is as under
:-
Because advanced nuclear cataracts are difficult for many vitreoretinal surgeons to remove and they impede surgical visualization ; I recommend cataract surgery first, then vitreoretinal surgery.
(iii) Opinion of Dr. Anshu Sahai is as under :-
In my opinion, both surgeries can be done together in a single sitting (surgery) which would save the cost and the hassle of repeated surgery. Any good Eye Centre would be able to do both surgeries together very comfortably.
Still in case both are not done together, I would feel that the cataract surgery should be done earlier, as the cataract hampers the visualization of the R.D. and makes the surgery more difficult.
What however is of the utmost importance is that the RD surgery should not be delayed too much as delay reduces the chances of a good visual recovery.
Please Note : This is a preliminary opinion provided without seeing the patient. Depending on the actual physical condition of the patient, the advise may need to be modified or altered accordingly as best suitable to the exact condition.
These doctors have rendered their opinion without going through the full details of the case merely on a query through e-mail. Dr. Anshu Sahai in fact emphasizes the importance of RD surgery when he states that delay reduces the chances of visual recovery. In his foot note he has made it clear that it was his preliminary opinion without seeing the patient.
Thus in our view much is being attempted to be made out of a non-issue and the judgment of the OP No.1 doctor which was aimed at the best interest of the complainant cannot be faulted.
Ground No.2 Whether the OP No.1 doctor was negligent in adopting retinal detachment operation (vitrectomy) by internal temponade by silicon oil as against modern Pneumatic Retinopexy under which only gas bubble is used.
Version of complainant on Ground No.II It has been contended on behalf of the complainant that OP No.1 doctor has tried to mis-represent the case to be that of advanced retinal detachment and inferior lower tem break whereas it was in fact upper tem break.
The most appropriate and latest treatment, therefore, should have been pneumatic retinopexy under which instead of silicon oil injection ; gas bubble should have been used. Conventional method of cryopexy and use of silicon oil has resulted in the complications resulting in damage to cornea and loss of vision. The counsel argues that the OP No.1 doctor has been negligent in not following the appropriate and best treatment warranted in this case.
Version of OP No.1, doctor In defense, the OPs counsel has contended that there is no question of mis-representation with regard to lower tem break as the diagram drawn at the time of examination clearly indicates the lower tear.
With regard to the choice of the conventional method of cryopexy with use of silicon oil, the counsel has contended that given the peculiar medical history of the complainant when he had already lost total vision of his right due to PVR and the left eye had repeated recurrence of retinal detachment, in the judgment of the OP No.1 doctor to adopt the conventional method of cryopexy with use of silicon oil was the best course. His choice was based not only on the basis of his vast experience in this specialized field but also on the basis of medical literature which say that depending on the facts and background of a case, the doctor would be the best person to judge the appropriate treatment and finding fault and attributing negligence just because things did not happen as expected would be an unfair and unsustainable allegation.
Our view A perusal of the complaint filed on 13.4.1998 does not even make a mention of the allegation now being made that the OP No.1 doctor embarked on a wrong choice in adopting the silicon oil injection procedure as against use of pneumatic retinopexy. Thus, it is on hind sight that the complainant has raised this ground to claim compensation. However, be that as it may, even otherwise we feel that the decision of the OP No.1 doctor was the appropriate course given the previous medical history of the complainant.
In medical literature Retina third Edition on Surgical Retina edited by C.P. Wilkinson, MD, on page 2216 on the relative merits of use of silicon oil Vs gas bubble, it has been stated that :
Much has been said and written about the relative merits of an extended intraocular tamponade using a long-acting gas compared to silicon oil. Although each method has its relative advantages and disadvantages, randomized prospective clinical trial has found that silicon oil and F3F8 gas were equally efficacious in the treatment of rhegmatogenous retinal detachment complicated by severe PVR Careful evaluation of the individual patient and of the specific ocular problem will help the surgeon choose the best tamponade for any particular situation.
Ultimately, we believe that surgical technique and the assiduous attention to relief of retinal traction are far more important determinants of the likelihood of success of vitreoretinal surgery in the management of complicated retinal detachment than is the decision as to whether to use silicon oil or a long-acting gas.
The obvious conclusion that can be drawn from this is that it was not a mistake to have gone in for silicon oil injection method.
The OP No.1 doctor has taken another plea. That during 1994, when the complainant was operated, pneumatic retinopexy with the use of bubble gas was still in an experimental stage and even gas was rarely available in India. Use of silicon oil was then very widely used in retinal detachment treatment and even now it is in use extensively. In the case of the complainant gas bubble could not have been used as the tear was on the lower side.
In an article on Health wise magazine down loaded from the internet on the subject of Pneumatic Retinopexy for retinal detachment it has been stated that :
What To Expect After Surgery Recovery from pneumatic retinopexy takes about 3 weeks. The local anesthetic affects only the eye and wears off quickly.
The hardest part of the recovery is keeping the gas bubble in the right place until a seal forms around the tear in the retina.
You must keep your head and eye in the proper position for 16 to 21 hours a day for 1 to 3 weeks after the surgery.
You cannot lie on your back or the bubble will move to the front of the eye and press against the lens.
The break must be in the upper half of the eyeball for pneumatic retinopexy to be practical. You have to be able to position your head so that the break and the bubble are at the highest point. If the break was on the bottom of the eyeball, you would have to stay upside down your recovery, which would not be practical.
In yet another article Retinal Detachment Surgery : The latest in current management by Alexander J.Brucker, it has been stated that even to this date, use of silicon oil for retinal temponade continues to be extensively used in Europe and other parts of the world. Even in US it is used by many surgeons selectively. Opinion of Dr. S.K. Narang corroborates, the OP No.1 doctors view in the matter.
In over all consideration of the plea advanced by the OP No.1 doctor and the medical literature on the subject, we are of the view that the OP No.1 doctor cannot be said to be negligent on this count.
Ground III The third ground on which the complainant has laid great stress relates to non-removal of silicon oil for almost 2 years by the OP No.1 doctor. The State Commission has held the OP No.1 doctor liable only on this count.
Say of the complainant Ground III As per the complainant, the OP No.1 doctor has been grossly negligent in not removing the silicon oil for long 2 years because of which he developed many serious complications. While OP No.1 doctor was persistently requested to do anything for the betterment of the treatment of the eye, complainant has alleged that, it was the OP No.1 doctor who was of the view that removal of silicon oil would lead to retinal detachment and deliberately delayed the removal of silicon oil.
The counsel has referred to certain information culled out from medical literature and contended that silicon oil if allowed to prolong can result in complications such as it originates emulsion that increases optic pressure, can promote glucoma and may damage cornea and impede microcirculation etc. Contending that as a specialist the OP No.1 Doctor should have removed the silicon oil in time which he failed to do despite complainants request and as many as 26 visits. On the contrary the OP No.1 doctor has tried to blame the complainant stating that he did not agree to have the silicon oil removed.
The counsel also referred to a certificate dated 14.9.1995 issued by the OP No.1 doctor stating therein that vision of the complainant is not good enough for any gainful business and has contended that contrary to the claim of the OP No.1 doctor that after the operation on 17.7.1994 injecting silicon oil the complainant has enjoyed good vision, the OP No.1 himself has contradicted himself. The counsel, therefore, submits that the OP No.1 doctor has been clearly negligent as rightly held by the State Commission.
Version of OP No.1 doctor on Ground III Learned counsel for OP No.1 doctor has contended that while complications in prolonged retention of silicon oil is not in dispute, what is to be noted is the fact that while going was good, the complainant had no grouse against the doctor. From 17.7.1994 for 2 years he enjoyed good vision. He was aware that removal of silicon oil will result in retina detachment and therefore did not agree to his advice during repeated visits. It is only after the removal of the silicon oil and corneal grafting that the complainant is finding fault with the retention of silicon oil when there was damage to cornea and corneal endosthelium leading to Bullous Kerotopathy.
The reference to the certificate dated 14.9.1995 is a misplaced evidence which was issued concerning a matter unconnected with the treatment to help the complainant and much is being made out of it without any merit.
The counsel, thereafter has referred to certain medical literature produced by the complainant and has argued that instances are not lacking when depending on the peculiar condition of certain cases silicon oil has been retained upto 7, 8 and even 20 years. Besides the Bullous Kerotopathy in the case of the complainant has occurred not because of silicon oil damaging the cornea but because of displacement/damage to the retina and therefore OP No.1 doctor cannot be held negligent.
The counsel further contends that given the predisposition and past history of the complainant, it was impossible for any doctor to prevent the natural decay and only because things did not happen the way expected by the complainant that a case of negligence is made out.
Our view The complainant is primarily relying upon the claimed 26 monitoring visits to the OP No.1 doctor to prove his point that, he was never advised to get the silicon oil removed nor did he ever show his reluctance. Additionally, he has also contended that even after the silicon oil injection, he continued to have serious problem and as a proof there of he has referred to the certificate dated 14.9.1995. While much weightage cannot be placed on the certificate which was given in the context of availing disability benefit, we fail to understand as to why the complainant did not express his concern before the OP No.1 doctor who had during his check up visits stated same condition repeatedly meaning thereby that during and upto those dates things were alright and the complainant had no complaints. It was only after 2 years that on 18.6.1996 the OP No.1 doctor noticed complications and advised removal of silicon oil in writing. Even thereafter, it has taken about another six months for the complainant to agree to his advice and by then he had developed corneal opacity and it is unfortunate that even after the removal of silicon oil and corneal grafting there was no improvement.
Further two eminent eye surgeon namely Dr.Cyrus M.Shroff Eye Centre, New Delhi, Dr. S.K. Narang of Institute of Laser and Retina Centre in their affidavits have opined that the line of management followed by OP No.1 doctor is according to the standard norms followed in such cases of retinal detachment Dr. S.K. Narang of Narang Eye Institute, Laser and Retina Centre, Delhi in his affidavit has stated as under :
3. It is stated that retinal detachment has to be treated as expeditiously as possible for chances of success in the said operation.
As such, the normal and standard practice followed in similar cases is to first operate for retinal detachment and then for cataract removal.
4. It is further stated that in the year 1994, pneumatic retinopexy surgery was still at an experimental stage and the gases required for the said surgery were also not easily available in the country.
This affidavit has not been rebutted by the complainant. We have also no reason to disbelieve it specially in the background of genetic pre-disposition as stated in the medical literature that heredity clearly influences the chances of retinal detachment in families with vitreoretinal degenerative disorder. In this case the complainant had already lost his vision of right eye.
In view of the above, we would not hold the OP No.1 doctor negligent. He appears to have done his best in a complicated case which unfortunately did not succeed for reasons beyond his control.
Thus, all the three grounds on which the complainants case is based in our view do not stand substantiated.
However, before we part with the case, it would be appropriate to deal with certain other minor averments made by the complainant.
One of the claims made is that when the complainant approached AIIMS on 18.2.1998 with regard to his treatment, it was stated that it was a case of poor surgical program. Claiming this to be the basis of medical negligence the complainant filed his complaint on 13.4.1998. We have perused the said OPD slip dated 23.2.1998 of AIIMS on page 73 of FA/279. It only states Poor Surgical Prognosis and not program as alleged, meaning thereby poor chance of recovery. It no where states that the treatment or RD operations by the OP No.1 doctor have been negligently conducted.
Similarly the other documents relied upon by the complainant ; that of Gurunanak Eye Centre in Jan., 2000, Mahajan Eye Centre dated 3.1.2000 and that of Safdarjung Hospital, no where comment on the earlier treatment. The claim of the complainant that these institutions have found the OP doctor deficient does not stand scrutiny.
Honble Supreme Court in Jacob Mathew Vs. State of Punjab in para 21 of the judgment referring to Halsburys Laws of England held that :
35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art even though a body of adverse pinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.
In conclusion, we would sum up the case as under :-
(i) That the best judgment of the OP No.1 doctor to first undertake retinal detachment surgery vis--vis cataract removal was the proper course. It has been opined by two eminent eye specialists Dr.Cyrus M.Shroff and Dr.S.K. Narang. Besides, even in the opinion of some other doctors both the operations could have been undertaken simultaneously, the OP doctor could not be held deficient as per the Halsburys Law of England extracted in Jacob Mathew Vs. State of Punjab.
(ii) Since the conventional method of cryopexy and use of silicon oil was the prevalent procedure at the relevant time the allegation that pneumatic retinopexy should have been adopted is misplaced. It had not been pleaded in the complaint and is an after thought.
In this regard it would be useful to quote from the judgment of Honble Supreme Court in Jacob Mathew Vs. State of Punjab.
22. In the opinion of Lord Denning, as expressed in Hucks Vs. Cole 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.
(iii) The blame game with regard to delay in removal of silicon oil has to be viewed in the back drop of 2 years of complaints free condition enjoyed by the complainant and he cannot be held liable just because the treatment/operation did not result in the expected outcome.
In para 25 of the judgment of the Apex Court cited above it has been held that ; simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
In this case, the complainant has unsuccessfully tried to make out a case only after, the expected results were not forthcoming despite the best treatment of the OP No.1 doctor. He had reposed his faith and confidence on the OP No.1 doctor over the years and never seriously consulted other experts. It was undoubtedly a complicated case and we do not find anything against the OP No.1 doctor to hold him either negligent or deficient in service.
RESULT
1. Order dated 3.4.2006 passed by the State Commission in Complaint Case No.105/1998 is set aside.
2. Appeal No.288/2006 of OP No.1 doctor is allowed and complaint dated 3.4.2006 is dismissed.
3. Resultantly Appeal No.279/2006 for enhancement of compensation is dismissed.
Parties to bear their own cost of litigation.
Sd/ (K.S.GUPTA) PRESIDING MEMBER Sd/ (S.K. NAIK) MEMBER St/18 (A&B)