National Consumer Disputes Redressal
Munni Devi vs R.P. Tondon (Dr.) on 6 September, 2006
Equivalent citations: IV(2006)CPJ259(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. This revision petition is directed against the impugned order dated 6.3.2003 passed by the State Commission, Ranchi, dismissing Appeal No. 50/2003 for the complainant/appellant/the present petitioner failed to prove medical negligence in the cataract operation of the right eye.
2. Brief facts giving an occasion for filing this revision are as follows:
The petitioner Munni Devi had complaint of cataract in her right eye. On 16th December, 1994, she contacted Dr. R.P. Tandon who advised operation. After getting some pathological tests, her right eye was operated on 27.3.1995 for cataract extraction. According to the complainant she lost her vision of right eye completely. Despite complainant, the opposite party did not take care. She went to Ahmedabad, she was operated twice there. She claimed that on account of carelessness of Dr. R.P. Tandon during cataract operation and post operation stage, she developed redness and swelling in her right eye with acute pain and total loss of vision. Accordingly she claimed compensation of Rs. 4,65,000.
3. The respondent contested the matter inter alia on the grounds that after the complainant produced the pathological test report and medical fitness certificate saying that she was fit for operation, operation of her right eye was performed on 27.3.1995 for cataract extraction with intra ocular lense fitting at the right eye of the complainant. After about one week, the complainant reported pain, oozing of water, redness and swelling in her right eye. On examination the respondent found it to be a case of Uveitis for which he prescribed steroid injection. After taking one injection she did not turn up for second injection as prescribed by the respondent. She consulted some other doctor at Ispat Hospital H.E.C. There is no dispute about the fact that Rs. 2,500 were charged for operation and Rs. 100 were charged for prior consultation. It was contended that he had performed the operation very skilfully and that the post operation trouble of Uveitis is a common feature and it was not on account of the result of any carelessness on his part. The petitioner voluntarily abandoned the services of the opposite party since 19.6.1995 and did not heed to the advice of second steroid injection as was prescribed by him. He also disputed that the vision of the complainant/petitioner was totally lost, rather after operation her vision was restored to 6/36 while previously her visibility in her right eye was only reading upto two lines from the top of the chart.
4. The District Forum after considering the evidence, dismissed the complaint on the ground that the complainant had admitted in her evidence that there was no medical deficiency in service and the complainant had voluntarily abandoned the services of the opposite party doctor.
5. An appeal was filed. Since none appeared on behalf of the petitioner, the appeal was also dismissed on merits after considering the material on record.
6. Feeling aggrieved by the impugned order, present revision petition has been filed.
7. We have heard the learned Amicus Curaie, appearing on behalf of the petitioner and the learned Counsel for the respondents and gone through the record. There is no dispute in between the parties that after operation the complainant petitioner started suffering from Uveitis. There is also no evidence whatsoever to show how it started.
8. According to 5th Edition of B.I. Publications Ltd., Cataract Surgery and its Complicationswritten by Norman S. Jaffe, M.D. Clinical Professor of Ophthalmology of Bascom Palmer Eye Institute, University of Miami School of Medicine, Miami, Florida and two others are as under:
Post-operative uveitis may be considered a normal accompaniment of cataract surgery. It is associated with other posto-perative complications such as retained lens material, epithelial invasion of the anterior chamber, operative loss of vitreous, and iris prolapse. To, avoid lengthy preparation, refer to the chapters in which the role played by inflammation is considered.
After cataract extraction, the causes of uveitis may be any of the following:
1. Surgical trauma.
2. Foreign material introduced during surgery.
(a) Cilia
(b) Lint
(c) Cellulose and cotton sponge
(d) Talc
(e) Rubber
(f) Glass
(g) Ointment
(h) Suture material
(i) Plastic lens implant
3. Chemical and physical agents
(a) Skin preparation solutions
(b) Instrument disinfectants
(c) Alpha-chymotrypsin
(d) Acetylcholine
(e) Cryogenics
(f) Viscoelastic materials
4. Wound incarcerations
(a) Iris
(b) Lens
(c) Vitreous
(d) Zonules
5. Ocular conditions
(a) Pre-existing uveitis
(b) Heterochromic cyclitis
6. Systemic conditions
(a) Rheumatoid arthritis
(b) Diabetes
(c) Immune competence
(d) Bleeding tendency
7. Other postoperative complications (1) Epithelial invasion of the anterior chamber
(b) Fibrous ingrowth
(c) Hyphema
(d) Vitreous haemorrhage
(e) Retained lens material (lens-included uveitis)
(f) Operative loss of vitreous
(g) Retinal detachment (h) Infection
8. Sympathetic ophthalmitis/' (Emphasis supplied)
9. It is evident that in this case of normal cataract surgery, it has not been proved that uveitis has been caused due to surgical trauma. As has been mentioned hereinabove there are various causes which related to ocular conditions such as surgical trauma, systematic conditions like rheumatoid arthritis, diabetes, immune competence, bleeding tenancy, infection etc. In absence of any specific evidence, it is not possible for us to say that it was caused due to surgical trauma.
10. Although according to Prof. Jaffe's opinion, the cause of this kind of reaction is unknown, it is reasonable to assume that the tissues of some patients are sufficiently sensitive to respond to manipulation of surgery by remaining chronically inflamed.
11. The changes induced in the anatomy and physiology of the eye by cataract surgery have been summarized by Gillman as referred to by Prof. Jaffe's cataract surgery, page, 543 as follows:
1. Changes induced at the site of surgical manipulation
(a) Local tissue necrosis
(b) Axon-reflex vascular reaction
(c) Liberation of intracellular metabolites, enzyme systems, and chemotactic substances.
12. There is evidence to the effect that Dr. Tandon has given tropical straus first and thereafter gave injection also.
13. According to First Indian Addition of 1958, Ocular Drug Handbook of Original American Edition publication of Mosby-Year Book, INC., ST. Louis, Missouri, USA, following medical advice have been given in respect of Uveitis:
Periocular "(repository) corticosteroids may be given by injection in the subconjunctival, sub-Tension's, or less commonly in the retrobulbar space. This method of using steroids is ideal in unilateral disease and can be used as a supplement to tropical therapy in both anterior and posterior uveitis. At the same time, repository steroids avoid most of the adverse effects of systemic therapy.
14. From the prescription dated 29.1.1995, is evident that sulodex J. eye drop was prescribed when uveitis was noticed. From the cross-examination of the complainant it is evident that thereafter injection was given. However, she denied in her cross-examination that the opposite party advised her to give injection after thirty days.
15. It is evident from the statement of the petitioner/complainant that Dr. Tandon had changed three lenses one after the other to suit her, and after operation, when redness increased with swelling and discharge of water from right eye, Dr. Tandon called her for taking post operative care, every week. She was given injection.
16. According to the affidavit of the respondent on 10.4.1995 uveitis was noticed, which was traced successfully by oral and topical steroids and anti-inflammatory drugs. On 11.5.1995 her vision was 6/8 in the right eye and glasses wee prescribed accordingly. On 16.5.1995, she got another bout of Uveitis. Since she was not keen on taking injection, subconjectival steroids were injected. She was referred to Shanker Netralaya. On 19th June, 1995, she consulted and she was given steroids injection with advice to report after one week. She turned up on 29th July, 1995.
17. From the statement of Dr. Tandon, it is evident that when she was not inclined for any injection, she was referred to Shanker Netralayla. In case she had gone there, she might have had second opinion as far as appropriate treatment is concerned.
18. However on 10.10.1995, she opted to go to Ispat Hospital. Ranchi and thereafter on 14.8.1999 went to Ahmedabad where she remained, under treatment. She was treated there by Dr. P.N. Nagpal. On 24th April, 1996 Dr. Nagpal gave the following report:
Report of Mimnidevi Sahu 58 years from Baroda our case No. 7021 of 16/3/96 having history of swelling over the RE since the tune surgery has been done. She has hypertension and has been also using anti-glaucoma line of treatment.The presented vision is finger counting 21/2. feet in RE and 6/36 in LE. The examination reveals in LE nuclear and posterior subcapsular cataract changes and the fundus is within normal limit. RE showed membranae formation in the pupillary areas and a strand of vitreous coming out through the posterior capsule which is not intact. We have indicated Yag laser membranectomy and use of Steroids and Atropin locally and have done the same twice because of recurrence of the condition inspite of Steroids, but the vision could be further improved to 6/60 extent. On 17.4.1996 the swelling had recurred for 10 days over the lids and the vision was 6 mtrs finger counting and tension was 14. My colleague Dr. Sharma who saw indicated further Yag laser and use of Steroids and Atropin.
(Emphasis supplied)
19. From the report of Dr. P.N. Nagpal it is evident that right eye showed membranae formation in the pupillary areas and a strand of vitreous coming out through the posterior capsule which is not intact. He had also indicated that laser membranectomy and use of Steroids and Atropin locally and have done the same twice because of recurrence of the condition inspite of Steroids. Thus it is evident that there is recurrence of membranae formation in the pupillary areas and a stand of vitreous coming out through the posterior capsule which was not intact. Swelling had recurred for ten days over the eye lids and the vision was 6/60 in left eye and with right eye she could count fingers from a distance of 21/2 feet. According to Dr. Nagpal, his colleague Dr. Sharma after examination gave advice of further Yag laser and use of Steroids and Atropin.
20. Report of medical report of expert dated 5.11.2005 filed by the petitioner does not advance the case of the petitioner even by an inch. The accompanying affidavit filed by Munni Devi does not name of the person who had given this report and the Doctor concerned has not filed his own affidavit, nor the report indicates the basis of forming an opinion. We cannot accept such a report. The complainant had admitted in her statement that she had voluntarily abandoned the services of the opposite party respondent doctor and had approached several hospitals and doctors for treatment from different doctor of her own choice.
21. If we go by the words of the opposite party doctor R.P. Tandon, then she did not heed to his advice at the post operational stage. It is not very unusual that some impatient patients who do not take the advice of doctors seriously and act against his advice on one hand, but expect instantious relief. In search of instantious relief, they change doctors quite often. The petitioners appears to one of such patients.
22. In pre-operative health of the patient there was systemic condition of the Asthama but according to Jaffe and Jaffe in Cataract surgery forewarned that it was usually unjustified to perform the said operation on a patient with an overwhelming medical problem such as a terminal stage of malignancy. If the patient has diabetic, it should be adequately controlled and diabetic status monitored during the hospital stay. Severe anaemia should be corrected, high-blood pressure reduced and all signs of congestive heart failure eliminated. Respiratory problems such as bronchitis and asthma should be controlled. The complainant had not stated a word that on the operation day or immediately before operation/even one day earlier she was suffering from asthma or any other abovesaid problem. Obviously things were under control, at the time of operation. It is also evident that she did not adhere to the advice given by the respondent to take injection in time and did not appear for timely check up and abandoned the respondent's treatment.
23. It may be mentioned that Hon'ble Supreme Court in Jacob Mathew v. State of Punjab III (2005) CPJ 9 (SC) : III (2005) CCR 9 (SC) : (2005) 6 SCC, in paras 19 and 20 has held as under:
An oftquoted 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. 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 & 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 on several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well condensed one. After a review of various authorities Bingham, LJ. in his speech in Eckerslely v. Binnie summarised the Bolam test in the following words: (Con LR p.79) 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 & Percy, ibid, para 8.04)
24. In view of the foregoing discussion, concurrent findings of fact detailed examination of the material on record and submission, it is apparent that the petitioner has failed to prove that there was any deficiency in pre-operative or post-operative care on the part of the respondent.
25. We appreciate services rendered by Ms. Astha Tyagi learned Anticus Curaie in assisting this Commission for she did her best to support the case of the complainant.
26. In the light of the aforesaid discussion, there does not appear any force in this revision petition and it is dismissed accordingly.