State Consumer Disputes Redressal Commission
Mr. Gopal Joshi vs Dr. Ashlesha Gala And Ors. on 23 March, 2018
1 (FA/14/59)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
FIRST APPEAL NO.FA/14/59
(Arisen out of Judgment and order dated 27/08/2013 passed by Ld.
Addl.Mumbai Suburban District in consumer complaint No.531 of 2006)
Shri.Gopal Joshi
R/at-Jeevaram bhawan,
4th floor, B/46, R.R.T Road,
Mulund (W), Mumbai 400 080. Appellant(s)
Versus
1.Dr.Ashlesha Gala
Netra Jyot, Eye Care Centre,
206, Jai Commercial Complex,
At the Junction of M.G.Road &
S.L.Road, Opp.Hotel Gurukrupa,
Mulund (W), Mumbai 400 081.
2.Dr.Hemant Thakkar
1st Navghar Lane,
Mulund (E), Mumbai 400 081. Respondent(s)
BEFORE:
Hon'ble Mr.Justice A.P.Bhangale, President
Hon'ble Dr.S.K.Kakade, Member
PRESENT:
For the
Appellant(s): Advocate Shri.T.S.Shilotri is present with authority
letter from Advocate Shri.Mangesh D.Nalavade
For the
Respondent(e) : Advocate Shri.Ajay Pawar is present for respondent No.1.
None present for respondent No.2.
ORDER
Per: Hon'ble Mr.Justice A.P.Bhangale, President
[1] Heard submissions. By present appeal, appellant has challenged validity and legality of the impugned Judgment and Order dated 27/08/2013 2 (FA/14/59) passed by Ld. Addl. Mumbai Suburban District in consumer complaint No.531 of 2006 whereby the consumer complaint was dismissed. Brief facts appears as under-
The complainant is resident of Jeevram Bhavan, 4th floor, B/46, R.R.T.Road, Mulund (W), Mumbai 400 080 had approached his family doctor, Dr.Hemant Thakkar due to problem in his eye. According to Dr.Thakkar complainant need to undergo Cataract operation. He advised him to approach Dr.A.M. Gala who at Netrajyot Eye Care Centre, 206, Jai Commercial Complex, Mulund (W), Mumbai 400 080. Thus, on 09/08/2005 Dr.Gala had advised the complainant to undergo Cataract operation. He was initially examined and it was decided to hold operation on 12/08/2005 at 8 a.m. The eye operation was conducted and the patient was discharged at evening on the same day. The complainant thereafter complained of cornea swelling to his left eye and ultimately lost his eye sight of left eye. Though the complainant had used eye drops as prescribed he was referred to Dr.Nikunj Shah and Dr.Nikhil Gokhale by Dr.Gala. The two doctors to whom patient was referred opined that there was injury to retina of the complainant and complainant had to undergo another operation on left eye on 02/09/2005. According to the complainant, the operation had failed and complainant lost his eye sight of left eye. Further according to complainant Dr.Gala ought not to have referred the complainant to Dr.Nikunj Shah and Dr.Vatsal Parekh. Complainant alleged that there was medical negligence by Dr.Gala and Dr.Thakkar as well.
[2] According to opponent No.1-Dr.Gala, patient had undergone operation at the hands of Dr.Parekh regarding injury to cornea and therefore he is not concerned with that operation. He also disputed his liability about the cataract operation or failure thereof. According to Dr.Gala it was a minor operation and was performed successfully and later on when injury to 3 (FA/14/59) cornea was complained of he had referred the patient to the competent doctors.
[3] We have considered the reasons stated by the Ld.Forum below in details regarding the observations as to the facts and medical negligence including the ruling of Hon'ble Supreme Court in Civil Appeal No.3541 of Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009 2009 CPJ page 32 (SC.
[4] It is true that medical practitioner would fail below the standard of his reasonable competency conduct if there are want of precautions to perform the operation or surgery. In the present case, we do not find any evidence from the opponent No.1 i.e. Dr.Gala as to his initial observation of the patient (complainant). Standard of reasonable care and precaution on the part of surgeon before performing operation necessarily and ought to be supported by documents such as Fitness Certificate of the patient to undergo surgery or operation and Consent Form at pre-operative stage indicating that the patient had given his free consent for undergoing the surgery. If according to Dr.Gala Cataract surgery was minor operation he should have taken precaution that patient is advised preliminary medical examination indicating that patient did not suffer from ailments like high B/P, Diabetes etc. or if he is suffering the necessary medical test to be performed and it ought to be ensured from the competent examining doctor that the patient is fit for undergoing surgery as contemplated in the case of complainant. We do not find any evidence in this regard nor we find that Ld.District Forum performed its duty to enquire as to whether surgeon concerned had insisted upon Fitness Certificate of the patient or whether patient had given his free consent to undergo the surgical operation. Apart from this, considering the judicial precedent relied upon on behalf of the opponent in First Appeal No.956 of 2006 decided by the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur between Mrs.Damayanti Devi v/s.
4 (FA/14/59) Dr.Indu Arora decided on 05/06/2009 and the principles of medical negligence, we are not questioning the requisite professional skill of Dr.Gala nor we impute professional negligence upon him on account of performance of operation in the facts of the case as he is post graduate in surgery and experienced Ophthalmologist. Our observations are limited to failure to take precautions on account of not insisting upon Fitness Certificate or Consent Form in writing from the patient at pre-operative stage since in the present case patient had approached Dr.Gala on 09/08/2005 and was called on 12/08/2005 at 8 a.m. for operation of the cataract. There was sufficient time gap during which complainant could have been medially examined in respect of ailments which he suffered and regarding fitness of the complainant to undergo the surgical operation in respect of cataract of his left eye. In our view, had these precautions been taken by Dr.Gala then he may have been exonerated from the liability. In absence of these precautions Ld.District Forum failed in its duty to address itself on these questions and simply considering the other facts proceeded to dismiss the complaint. Our attention is also invited to the Article -'Medical tests before eye surgery- when you need them - and when you don't ' published by American Academy of Ophthalmology in the year 2017 in the periodical 'Choosing wisely (an initiative of the ABIM Foundation). It cannot be disputed that cataract surgery in modern days is low risk eye surgery as it is usually done with local anesthesia to numb the eye and then medicines are prescribed for relaxation of the patient. However, observation is mentioned as, 'Even though eye surgery is very low risk, many healthy people get a routine set of tests before their surgery. In these cases, the tests don't change the surgery or make it safer.' The article further reads as, 'You may need an EKG if you have heart disease or symptoms such as chest pain or shortness of breath. If you have diabetes, you will probably need a blood test to make sure it is under control.' These observations are clearly indicative of precautions that need to be taken before any eye 5 (FA/14/59) surgery is performed in cases of patient suffering from ailments such as hypertension or diabetes. Necessary medical tests are necessary so that the competent doctor examining can certify that patient is fit for surgery. Furthermore, surgeon shall also take precaution to obtain free consent of the patient or close relative in writing before he can be subjected to surgery. For want of these precautions only we partly allow this appeal irrespective of the failure of the surgery. We direct the appellant Dr.Ashlesh M.Gala to pay sum of Rs.25,000/-(Rupees Twenty Five Thousand only) as compensation inclusive of charges for surgery to be refunded in the sum of Rs.15,000/- (Rupees Fifteen Thousand only). We also direct litigation costs in the sum of Rs.5000/- (Rupees Five Thousand only) shall be paid to the complainant. The amount shall be paid within one month from the date of this order failing which it shall carry interest @ 9% p.a. from the date of order till realization. Impugned order is set aside. Appeal is partly allowed accordingly.
Certified copy of this order be supplied to both the parties. Pronounced on 23rd March, 2018.
[JUSTICE A.P.BHANGALE] PRESIDENT [Dr.S.K.KAKADE] MEMBER rsc