National Consumer Disputes Redressal
Mrs. Sucheta Sanyal vs Dr. M. Bhowmik & Anr. on 5 May, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 25 OF 2002 Mrs. Sucheta Sanyal W/o Sh. Santosh Sanyal P.O. Rangia, Distt. Kamrup Assam Complainant Versus 1. Dr. Meghnad Bhowmik Alokon Eye Care Center 162/A, Lake Town, Calcutta-700 089 West Bengal 2. St. Marys Nursing Home, Old Station Road Alipurduar, Distt. Jalpaiguri West Bengal Opposite Parties BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HONBLE DR. S.M. KANTIKAR, MEMBER For the Complainant : Mr. Feroze Ahmad, Advocate and Mr. R. S. Sharma, Advocate For the Opposite Party No. 1 : Mr. Ranjan Mukherjee, Advocate and Mr. S. Bhowmik, Advocate For the Opposite party No. 2 : Nemo PRONOUNCED ON 5th MAY, 2014 ORDER
PER DR.
S.M. KANTIKAR, MEMBER
1. The outcome of the cataract surgery, usually is not caused by negligence or even poor practice. However, defending bad outcomes is rarely easy. In this complaint, the complainant, Smt. Sucheta Sanyal alleged negligence that the opposite party Dr. Meghnad Bhowmik (OP-1) Eye Surgeon, failed to recognize and treat endophthalmitis one day postoperatively (cataract surgery) which resulted in the enucleating of her right eye. The OP-1 maintained that the complainant was properly treated. The complainant contended that the OP, Dr. Bhowmik, had appropriately treated her on the first postoperative day, she would not have suffered the loss of her right eye.
2. Facts of the Complaint:
The complainant, Smt. Sucheta Sanyal, aged about 65 years is a Primary school Teacher at Rangia, Assam, (herein referred as patient). The Opposite Party (OP-1) Dr. Meghnad Bhowmik, an eye specialist, a resident of Calcutta used to visit and work in Alipurduar for three days a week at St Marys Nursing Home Opposite Party-2 (OP-2). On 17.7.2001, the complainant consulted the OP-1, who, after examination, advised cataract surgery of Right eye (Exhibit CW1/1). Further, the OP-1 expressed urgent surgery, otherwise there would be possibility of damage to the said eye. Accordingly, complainant got admitted in hospital (OP-2) and the OP-1 performed an operation at 7 pm on 18.7.2001, and was discharged at 9 p.m., on the same day. OP told her at the time of discharge, that there was nothing to worry, as it was a simple Phaco surgery. As a follow up, on 19.7.2001, patient visited OP-1, who removed the eye bandage, prescribed medicines and advised rest for 1 months. Due to unbearable pain in her Right eye, on 20.07.2001, i.e. on next day, she visited OP-1 clinic at Alipurduar (Ext CW1/2), where Dr. Sankar was present in place of Dr. Bhowmik. He examined her and prescribed medication. He advised her to visit Calcutta and seek further treatment from the OP-1.
Accordingly, on 24.07.2001, she visited OP-1 at Alokon Eye Centre, Calcutta. (entry made on CW1/1). The OP-1, along with a team of doctors, examined her and admitted her for cleaning of eye. She was discharged on 27.07.2001, with a diagnosis of Endophthalmitis in Rt. eye. (Discharge summery CW1/3) Thereafter, OP-1 prescribed some medication, he has not disclosed her about the seriousness and real condition of her Rt eye. Complainant returned back to her place in Assam, but her condition worsened, for which she visited OP-1 clinic at Alidurpur, on 28.7.2001, and again at Calcutta, on 4.8.2001 (CW1/4), who prescribed only medicines, but, the OP-1, did not inform the serious condition of her Right eye. There was no improvement; therefore, she was forced to consult another Eye Surgeon at Sri Sankaradeva Nethralaya Medical Research Foundation (SNMRF), Guwahati, Assam. There, it was diagnosed as post-operative Endophthalmitis, (i.e. inflammation/infection) Schleral & Limbal necrosis (death of part) and conjunctival sloughing (shedding of skin) The prescription dated 05.09.2001 and 07.09.2001 (Ext CW1/5 and CW1/6) of Sankaradeva Nethralaya and the case summary mentioned about complete damage to Right eye, and also there was Schleral & Limbal necrosis which needed surgical removal. Accordingly, she was advised for surgical removal of the eye and other risk factors to her life.
3. Thereafter, the Complainant, again visited the OP Doctor on 10.09.2001, but he turned a deaf ear to the findings of Sankaradeva Nethralaya and told the Complainant to continue the medicines, as he prescribed. With an apprehension of the foul play of Dr. Bhowmik(OP-1), and since her condition of eye was worsening, she visited Dr. Amal Deb, a Senior Consultant Ophthalmologist, Retina Specialist, IOL & Phaco Micro Surgeon at Cooch Behar, on 11.09.2001. On examination, he informed her that in Phaco-surgery, there should be no stitch in the eye, whereas, a stitch was observed in her Right eye. He further told her to remove her Rt. eye (evisceration under local anesthesia) immediately, otherwise, there was possibility of brain hemorrhage. Thus, unfortunately, her right eye was removed on 29.09.2001 at Shankar Netralaya, Chennai, its discharge summary is dated 3.10.2001. Thereafter, the Complainant returned to Rangia, Assam and noticed that pus was coming out from her mouth, eye and nose. She again, on 16.09.2001 visited the Sankaradeva Nethralaya at Guwahati, and at last visited Sanakara Nethralaya at Chennai on 22.09.2001, then her eye was removed on 25.09.2001 and discharged on 3.10.2001 (Discharge Summery-Ext CW1/9). She was advised to revisit on 08.12.2001, for glass implantation. Complainant was examined as CW1 and it was substantiated by her husband as CW2. She filed the medical records marked as Exhibits CW-1 to 9).
4. Hence, the Complainant alleged deficiency of service on part of OP-1, for failure to diagnose and treating the serious complications. Also, alleged negligence on part of OP-1, who put the stich for Phaco surgery, and ignored another surgeons findings about seriousness and failed to advise her properly, which resulted her in losing her right eye. She became visually handicapped and suffered mental agony and filed this complaint praying for Rs.30,00,000/- as total compensation.
5. Defense Of Dr. Meghnad Bhowmik (Opposite Party - OP-1) Dr. Bhowmik has admitted about the examination of complainant and his performing of Cataract surgery, but has denied all the allegations made by the Complainant. In the affidavit evidence of OP-1, it is submitted that on 18.07.2001, he had satisfactorily conducted operation on right eye, he did follow-up checkup on next day and found that the complainants right eye was satisfactory. He prescribed medicines and called her, for further checkup, after 2 weeks and issued a post-operative care and instructions card in local Bengali language. On 21.7.2001, complainant attended his clinic and was examined by Dr. S. K. Sankar, who is also an Ophthalmologist. He prescribed few medicines and informed him telephonically about the condition of patient (complainant). Thereafter, on 24.07.2001, the patient visited him at Alokon Eye Center, Kolkata. After examination, he has suspected it, as a case of post-operative endophthalmitis. At that time, his ophthalmologists colleagues who were present there Dr.(Prof) Debnath Chottapadhyay, Dr. Abhrit Chatterjee, Dr. P. Pasha and Dr. Ashish Chottapadhyay also clinically examined the patients operated Right eye and suspected her to be a case of endophthalmitis. After explaining the facts, on the same evening, anterior chamber cleaning and intravitreal antibiotic and antifungal injections was performed with assistance of other colleagues. The complainant was admitted in Alokon Eye Centre. Her condition was improved and on 27.7.2001 was discharged with necessary follow-up instructions. Thereafter, the OP-1 examined the patient on 4.8.2001, at Kolkata and on 28.8.2001 at Alipurduar, and found that the condition of Right eye was steady, and advised to continue medicines to avoid any deterioration. On 10.9.2001, OP-1 examined Complainants Right eye, and noticed deterioration. He explained her about prognosis and prescribed medicines. He further submitted that Complainant did not show the prescription dated 5.9.2001. Thereafter, the complainant did not consult him further, any more. OP-1 denied about putting a stitch in right eye during Phaco-surgery on 18.07.2001, but applied one stitch in limbus, on 24.07.2001, during cleaning of anterior chamber of operated eye, by virectomy cutter. Therefore, OP-1, in his evidence, denied that due to his negligent surgery, complainant had lost her eye. Endophthalmitis is a known complication, he has treated the patient with his fellow ophthalmologists, with care and best of his skills. Also contended that, the other doctors (colleagues) who treated the Complainant, have not stated any negligence on his part. OP-1 acted as per standards of medical practice, hence no medical negligence; therefore he should not be liable for any claim against complainant, and the complainant failed to prove the deficiency and negligence on the part of OP-1, hence, prayed for dismissal of complaint.
6. In support of OP-1s affidavit, evidence and cross examination of three eye surgeons namely Dr. (Prof.) D. N. Chottapadhyay, Dr. Pashu Pati. Saha and Dr. Abhrajit Chatterjee were recorded. In their evidence, it is expressly stated that Dr. Bhowmik (OP-1) has treated Mrs. Sanyal (complainant) as per medical norms and without any shortcomings.
7. Arguments:
We have heard rival arguments of the counsel for both the parties, who also filed their written arguments. The Counsel for the Complainant Mr. Feroze Ahmad and Mr. R. S. Sharma vehemently argued that throughout the treatment, the OP-1 was found negligent. The OP-1 failed to diagnose the complications and occurrence of Endophthalmitis during the second day of follow up. Hence, the condition of right eye got worsened further. The OP-1 went on prescribing the same medicines, again and again, without considering the deteriorating condition of the eye of the Complainant. It was further argued that Dr. Bhowmik failed to monitor the Endophthalmitis, which resulted into pus discharge, from the nose, eyes and from the mouth of the Complainant. For this, she consulted two other Eye Specialists, who warned her of the possible danger to her life, if the eye is not removed. Therefore, in the entirety, it was due to negligence of OP-1, that she lost her right eye and suffered mental agony, for which she deserves for proper compensation, as prayed. The counsel for complainant relied upon the case of H.S. Sharma Vs. Indraprastha Apollo Hospital & Anr., II (2007) CPJ 21 (NC) in OP No. 36 of 1998.
8. The Counsel for the OPs argued that the OP-1 is qualified Eye Surgeon practicing, since 1987, with high reputation. During his professional career, till now, 8,000 Cataract surgeries were performed by him. The fact that in spite of the best treatment in case of endophthalmitis, the patient may became blind, is also well accepted in the medical sciences. He has put reliance upon the medical text, Cataract Surgery and its Complications Norman S. Jaffe 4thEdn.
Although the incidence of intraocular infection after cataract surgery has sharply declined during the past 30 years, it is still one of the most catastrophic complications of surgery. Although newer antibiotic agents are available that combat heretofore highly resistant organisms, numerous instances of fulminating infections that defy all therapeutic efforts still occur. ( Annexure F) Clinical Ophthmology _ A Systematic Approach (3rdEdn.) Jack J. Kanski at Page 300.
Acute endophthalmitis is a devastating complication that occurs in about 1 in 1000 cases. Despite early treatment, about 50 % of eyes become blind.(Annexure G)
9. Counsel further argued that, the issues involved in this complaint are complicated and medical negligence is a very highly technical subject which needs voluminous evidence. Hence, the Civil Court will be the proper court and accordingly Consumer Forum has no jurisdiction. The counsel for OP-1 relied upon the following authorities:
a) Bhupendra Nath Das Vs. Maharaj Ram Krishna Mission Seva Pratisthan & Ors., I (1998) CPJ 377.
b) Air Commodore Satyanarayana Vs. L. V. Prasad Eye Institute & Anr., I (1998) CPJ 110.
C) Hari Prasad Chunkai Vs. Mannulal Jagannath Trust Hospital & Ors., IV (2003) CPJ 15.
Discussion:
10. We have perused the entire medical records on file, the evidence of both the parties. The statement of complainant recorded before the Local Commissioner. On 28.1.2002, this commission directed the complainant to submit the expert opinion or extract of some book, through which, opinion can be drawn, that the eye surgeon committed mistake in operating the eye of the Complainant.
11. Accordingly the Complainant filed following documents:
i) the certificate of Dr. Ashok Kumar Bhuyan.(Annexure A)
ii) an extract from SUSWATHYA, a Bengali magazine on health, dated 15th July 2002 issue. There is opinion of Dr. Dalip Kumar Barman about micro surgery and Phaco surgery and its translation (Annexure B).
iii) an extract- medical book PARSONS DISEASES OF THE EYE, WRITTEN Page 301 and 302,( Annexure C).
iv) The some reports on cataracts that the said surgery is a no-stitch, small incision procedure- download (Annexure D)
12. We recollect the sequence of events as, on 21.07.2001, the patient had suffered unbearable pain in her operated Right eye, i.e., on 3rd post-operative day, for which Dr. S. K. Sanakara advised medicines and further, as per his advice, she went to Calcutta, on 24.07.2001 to meet the OP-1. At Alokon Eye Care, she was diagnosed as Endophthalmitis in operated eye, and accordingly, on 24.07.2001, after AC (Anterior Chamber) was cleared with virectomy cutter, given intravitreal antibiotic and antifungal injections. She was discharged on 27.07.2001. We agree with the contentions of OP-1 that the patient, on examination, on 24.07.2001 found to have PL + PR; which should be treated with intravitreal antibiotics, as per medical science (Copy of Extract Annexure E). The reference will indicate that depending upon the visual capacity, the treatment should be extended. This contention was also supported by his fellow colleagues. Thereafter, patient was examined twice, by the OP-1, at Calcutta on 4.8.2001 and at Alidurpur on 28.8.2001.
13. The important issue in this case is that the patient/complainant-1 suffered post-operative Endophthalmitis in her Right eye and subsequently, within a span of two months, her said right eye was eviscerated. The issue is, whether, the OP-1 was negligent or Not? After careful perusal of entire medical records and the sequence of events, we have given thoughtful consideration. On perusal of brief case summery dated 5/9/2001 of Sri Sankaradeva Netralaya, Guwahati and the Case Summery of Shankar Netralaya, Chennai dated 3.10.2001, it cleared our doubts. The relevant observations on affected Right Eye are reproduced as follows:
From: Sankaradeva Netralaya, Guwahati Dated 5/9/2001 Brief Case Summary Complaint: Redness, Pain & watering-(OD) for last11/2 months.
H/O Phaco + IOL Surgery-(OD) done on 18-07-01 elsewhere.
Vision:
OD: PL + Acceptance: OD: N.I. ADD: OD: N.I. OCCULAR MOTALITY: OD: FOM SLIT LAMP EXAM: OD: Sloughed out conjunctiva, selera & cornea With exposure of uveal tissue.
Collapsed Ant. Chamber with organized exudates in the cornea & ant. Chamber.
Conjunctival congestion & chemosis. Ciliary congestion.
Conj.
Discharge.
INTRAOCULAR PRESSURE: OD: Soft D. T. GONIOSCOPY: OD: No done.
FUNDUS: OD: No view.
INVESTIGATION: --
DIAGNOSIS: OD: Post-operative Endophthalmitis.
Scleral & Limabal Necrosis.
Conjuctival Sloughing.
TREATMENT: Conservative Treatment.
Adv:- Surgical removal of eye.
Visual status & risk factors explained.
Also, we have perused the Shankar Nethralaya, Chennai Case Summery dated 3rd October 2001, the relevant para 2 is reproduced as below:
14. From Shankar Netralaya, Chennai dated 3.10.2001 Case Summary (relevant para) Mrs. Sucheta Sanyal (Our MRD No. 514145), a 56 year old lady was seen by us on 22.09.2001. She gave a history of undergoing phacoemulsification with intraocular lens implantation in the right eye under local anesthesia on 18.07.2001. Subsequently she was diagnosed to have postop endophthalmitis in the right eye and was treated for the same. She came here for further management.
On examination, her best corrected visual acuity was perception of light with accurate projection of rays in the right eye and 6/6; N18 in the left eye. Extraocular movements were full. Slit lamp examination of the right eye extensive pseudo cornea with scleral melt superiorly 4mm from the limbus, the left eye was normal. Applanation tension was 12 mm of Hg in the left eye. There was no view of the fundus in the right eye. Fundus examination of the left eye was unremarkable. Ultrasound examination of the right eye revealed multiple low reflective echoes in the vitreous cavity and was suggestive of endophthalmitis. She was advised to undergo evisceration in the right eye under general anesthesia. She was also referred to Dr. Parveen Sen, Vitreo retinal surgeon who agreed the findings and management. She underwent evisceration with scleral frill excision in the right eye on 25.09.2001. Post-operative period was uneventful. Subsequently she was reviewed here on 26.09.2001. The socket was healthy. She was advised to continue the medication and was advised to come for glass appointment on 08.12.2001.
Therefore, referring both the para supra(12 & 13), On the basis of medical texts it is clear that there was perception of light in Right eye, hence the line of treatment adopted by OP-1 was correct. The occurrence of scleral and limbal necrosis was not due to phaco-surgery procedure, but was a sequel of endophthalmitis after a period more than one month.
15. Even, the Ext. CW1/8, produced by the complainant, i.e. a prescription slip issued by Dr. Amal Deb on 11/9/2001 is not supportive to her case. Dr. Deb put a diagrammatic sketch of patients operated right eye with markings of one stitch, sloughing and loss of eye integrity. We have referred to several medical texts and are of considered view that the Stitch was put after proper clearing of anterior chamber, on 24.07.2001, and not during the Phaco-surgery, as alleged by the complainant. It was necessary for early healing of wound. Even otherwise, according to the medical science, there is no absolute bar for applying stitches in case of Phaco surgery.
16. After, 5/9/2001, patient met the OP-1 on 10.09.2001, but she did not disclose the doctor about the findings of Shankar Netralaya. But, on the basis of clinical examination for perception of light (PL), OP-1, further advised medical treatment, which is not negligence. We do not agree that there was delay in diagnosis and management of Endophthalmitis by Dr. Meghnad Bhowmik. OP-1 has acted as per standard of practice and we do not find any deviation. There is no act of omission or commission by the OP-1, hence no negligence. The annexure A, the opinion of ophthalmologist Dr. Asoka Kr Bhuyan, has no evidentiary value, it was issued without any examination details of patient. It was issued without application of mind and any scientific basis.
17. Before concluding, we would like to refer several decisions of Honble Supreme Court and this commission on medical negligence.
The Honble Supreme Court in in Indian Medical Association Vs V.P.Shantha [(1995) 6SSC 651], and Jacob Mathew V State of Punjab & Anr, (2005) 6 SSC 1= III (2005) CPJ 9 (SC) had concluded that, a professional may be held liable on one of two findings :
either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.
It is worthwhile to mention here the Bolams case (Bolam Vs. Frien Hospital Management Committee (1957) 1 WLR 582 it was also held that a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view. Essentially three principles are applied to decide negligence of doctor.
In the instant case, OP-1 Dr. Bhowmik, is a qualified doctor, having experience and skills in his specialty, and he used his best professional judgment and due care in treatment of patient, during post-operative period.
18. Therefore, for the reasons stated above and on the entirety of the case, we are of the considered opinion that OP-1, Dr. Bhowmik has treated the patient, both, during pre and post-operative period, with due care and caution, as per standards of medical practice. We do not find any deficiency in the services and negligence.
Accordingly, we dismiss the complaint, without any costs.
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(J. M. MALIK, J.) PRESIDING MEMBER ...
(S. M. KANTIKAR) MEMBER Mss