National Consumer Disputes Redressal
Kum. Laxmi vs Dr. Kshetrapal Eye Hospital & Research ... on 13 November, 2009
OP 10/1998 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2712 OF 2005 [Against the order dated 26.07.2005 in Appeal No. 1313/1996 of the State Commission, Rajasthan] 1. Dr. Kshetrapal Eye Hospital & Research Centre, through its Chief Dr. Ramesh Kshetrapal, Kutchery Road, Ajmer. 2. Dr. Ramesh Kshetrapal, Eye Hospital & Research Centre, Kutchery Road, Ajmer. Vs. Kum. Laxmi, daughter of Shri Pohumal, resident of Khicho-Ka-bas Sojat, District Pali (Rajasthan). Petitioners/Opposite Parties Respondent/Complainant Appearance :- For the petitioners/opposite parties Mr Pawan Kumar Mutneja, Adv. For the respondent/complainant Mr. R.K. Gupta, Advocate BEFORE: HON'BLE MR. JUSTICE R.K. BATTA, PRESIDING MEMBER HON'BLE MR. S.K. NAIK, MEMBER Pronounced on : 13.11.2009 ORDER
PER S.K. NAIK, MEMBER This revision petition is by the opposite parties, Dr. Kshetrapal Eye Hospital & Research Centre and Dr. Ramesh Kshetrapal, who are aggrieved by the order passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (State Commission for short), who vide their order dated 26.07.2005, passed in appeal filed by the respondent/ complainant Kumari Laxmi against the order passed by the District Consumer Forum, Ajmer (District Forum for short) dismissing her complaint, have set aside the District Forum order and have directed the petitioners/opposite parties to pay to the complainant a sum of Rs.1.00 Lakh as compensation along with interest @ 12% per annum from the date of filing of the complaint till its payment.
In brief, the facts of the case are that the respondent/complainant Kumari Laxmi, a teenager, was operated by petitioner/opposite party no.2 Dr. Ramesh Kshetrapal on 12th of June, 1993 for Radial Keratotomy, an operation for those using spectacles to get rid of its use. Within a span of less than a week, however, the respondent/complainant reported back to the petitioners/opposite parties with complaint of serious problem in her right eye.
Petitioner no. 2 on examination of the respondent/complainant found that there was some damage in right eye and referred her to go to Civil Hospital, Ahmedabad for further treatment. While the respondent/complainant remained under the treatment of Civil Hospital, Ahmedabad from 21st of June, 1993 to 23rd of June, 1993, on being informed by the doctors that there was hardly any possibility of cure of her problem, she started running from pillar to post. She approached the Jawaharlal Nehru Hospital, Ajmer and remained under their treatment from 8th of August, 1993 to 7th of November, 1993 and later also visited the All India Institute of Medical Sciences, New Delhi on 22nd of December, 1993, where she was finally informed that she has lost her sight on the right eye for all times to come. It was in this background that she approached the District Forum, alleging medical negligence on the part of the petitioners and claimed a compensation of Rs.4.00 Lakhs, in addition to the reimbursement of the expenses incurred by her for the treatment to the tune of Rs.1.00 Lakh.
The complaint being resisted by the petitioners/opposite parties, the District Forum called upon them to lead their respective evidence and on appreciation thereof, the complaint came to be dismissed.
Dissatisfied and aggrieved thereupon, the respondent/complainant filed an appeal before the State Commission, who after a detailed analysis of the evidence and the medical literature on the subject reversed the order passed by the District Forum and held the petitioners/opposite parties negligent in conducting the Keratotomy on a minor, who was only 17 years old, whereas in normal practice and as per medical literature such operations should be done ideally on persons of 21 years of age.
The State Commission has, however, awarded a compensation of Rs.1.00 Lakh. The opposite parties who are the petitioners before us are aggrieved on this finding and order of the State Commission and hence this revision petition.
Learned counsel for the petitioners/opposite parties has contended that the State Commission has failed to take into consideration the facts which are very relevant and has picked up the lone point with regard to age of the respondent/complainant on which there is no conclusive proof and correlated it to the medical literature where only the ideal conditions are stated but it is neither sacrosanct nor does it debar conducting of operations if the operating surgeon finds that the Myopia and astigmatism is stable and non-progressive. In this case, the operating surgeon had taken due care in this regard and thus it cannot be said that there was any negligence on his part. He has further submitted that the State Commission has failed to take into account the fact that the complainant had herself inflicted an injury on her right eye as she had hit a mopping cloth on her right eye two days prior to her reporting on 18th of June, 1993. That was the main cause of infection, causing damage to the eye, and on finding that an ulcer had developed in the cornea, he rightly referred the respondent/complainant to go to the Corneal Center at Ahmedabad.
Learned counsel submits that had the operating surgeon been negligent he would have never referred the patient to another hospital.
Another argument advanced by the learned counsel for the petitioners/opposite parties is that the State Commission has failed to appreciate the fact that the respondent/complainant after availing treatment in a number of other hospitals and even at All India Institute of Medical Sciences, New Delhi, came back to him, which speaks of her faith in them and the operating surgeon tried his level best to treat her to the best of his ability. It is a different story that by then her right eye had been damaged to an extent that it was not possible to retrieve her vision. Thus, it could not be said that a fully experienced and highly qualified surgeon would have rendered any deficiency in service or has been negligent and the District Forum had rightly absolved the petitioners/opposite parties of any liability. He, therefore, prays that the revision petition be allowed.
Learned counsel for the respondent/complainant on the other hand has fully justified the order passed by the State Commission.
He has submitted that it is to be considered whether or not while undertaking such a delicate operation as Keratotomy on a 17 year old girl against the optimum requirement of 21 years could be ignored by the operating surgeon. The State Commission has dealt at great length this aspect and has extensively extracted the medical literature on the subject. The petitioners/opposite parties have been rightly held to be negligent and the order passed by the State Commission needs no interference.
Having heard the learned counsel for the parties we are not in agreement with the learned counsel for the petitioners/opposite parties that just because the operating surgeon was a fully qualified and highly experienced Ophthalmologist, he could commit no mistake. At times long experience gives rise to over-confidence and this appears to be such a case. Here the allegation is that the Keratotomy operation has been undertaken on a 17 years old teenage girl while the medical literature states that surgery is contraindicated in patients younger than 21 years because upto that age myopia is usually unstable. This is based on the 3rd Edition of the book Clinical Ophthalmologhy by Jack J. Kanski (page 143) where Radial Keratotomy has been defined as under :-
Radial Keratotomy Radial keratotomy (RK) decreases myopia by flattening the cornea through a series of deep radial incisions.
Indications include adults with stable myopia of between 2 and 8 D, preferably with minimal astigmatism, who for various reasons are not satisfied with spectacle or contact lens wear.
Contraindications include patients with myopia of more than 8D because their final refractive correction is unpredictable. RK should also be avoided in patient with pre-existing corneal disease because of the increased risk of perforation and worsening of their corneal disease . As the myopia must be stable before RK is performed, patients younger than 21 years are unsuiable.
(Emphasis supplied) Further the book on Principles and Practice of Ophthalmology, Second Edition of Daniel M. Albert and others published by W.B. Saunders Company under the sub-head Patient Selection under the head Laser in Situ Keratomileusis, states as under :-
The minimum age for LASIK, as for refractive surgery in general, is typically 18 years of age, thus proper informed consent can be given by the patient.
More important than age, however, is the refractive stability of the patient. ...
These texts speak for themselves and the doctrine of res ipsa loquitur would be applicable to this case. The obvious inference that can be drawn is that an operation of this kind should not be undertaken on persons below the age of 18 years in any case. In the present case, the negligence on the part of operating surgeon is evident from the fact that in none of his prescriptions and medical records he has made any attempt to ascertain the correct age of the patient. On two of the documents i.e. prescription slip dated 08.01.1993 and consent certificate no entry is made with regard to age of the patient and in one case it only states the age as 17.
Under the circumstances, it can only be inferred that the operating surgeon has failed to first consider this aspect of eligibility of the patient to undergo such a surgery. The other explanations that he had himself referred the patient to the Civil Hospital, Ahmedabad or that the patient returned to him after a series of consultations at various institutions, including the All India Institute of Medical Sciences, New Delhi, will not cover the neglect/omission of ignoring vital question of age. Even on the other important aspect of whether the myopia astigmatism was stable and non-progressive, we find that the evidence on this issue is grossly inadequate. One wonders whether the omission to ascertain the proper age of the patient and further to clearly mention in the medical prescription/records that he has thoroughly satisfied himself with regard to the stability of myopia was a result of over-confidence or being anxious to seize any opportunity that came his way. The only excuse or the only defence that the corneal abysses was the outcome of the complainants own doing by the use of a dirty mopping cloth has been stoutly denied by the complainant. It can hardly be believed that when a patient had been advised post-operative care, specially with regard to the eyes, that she would even accidentally hit her eye with a dirty mopping cloth. This appears to be only an afterthought. Thus, the lapse on the part of the petitioners/opposite parties stands established. The Honble Supreme Court while summing up the total discussion in the case of Jacob Mathew Vs. State of Punjab and another [(2005) 6 SCC 1] in para-48 have stated that the essential components of negligence are three: duty, breach and resulting damage. It has further been stated that a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.
In the case in hand, even if the operating surgeon possessed the requisite skill he did not exercise the skill with reasonable competence and thus, the petitioners/opposite parties cannot be absolved of their liability. The State Commission has passed a very detailed and well reasoned order, with which we agree.
Under the circumstances, the revision petition is dismissed, however, without any order as to cost.
Sd/-
(R.K. BATTA) (PRESIDING MEMBER) Sd/-
(S.K. NAIK) MEMBER Mukesh/