National Consumer Disputes Redressal
Dr. Dilip C. Shah vs Subhashchandra on 26 November, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 2385 OF 2014 (From the order dated 20.03.2014 in FA No. 99/2011 of Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench at Udaipur) Judgment reserved on 11.11.2014 Judgment pronounced on 26.11.2014 Dr. Dilip C. Shah Padmavati Eye Hospital, Dhanlaxmi Market Sagwada, District Dungarpur, Rajasthan ... Petitioner Versus 1. Subhashchandra s/o Tulsiramji Sevak Kokapur, Sagwada, District Dungarpur, Rajasthan Through District Consumer Committee, Dungarpur, Rajasthan. 2. The Manager The New India Assurance Co. Ltd. Himatnagar Branch, Himatnagar 383001. District Sabarkantha, Gujarat Respondent(s) BEFORE HONBLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Appellant Mr. Madhurendra Kumar, Advocate with Dr. Dilip C. Shah, petitioner in person Mr. D.H. Subnani, Advocate For Respondent No. 1 Mr. Harsh Surana, Advocate with Ms. Deepali Surana, Advocate For Respondent No. 2 Dr. P.N. Tiwari, Advocate O R D E R
PER DR. B.C. GUPTA, MEMBER This revision petitioner has been filed under section 21 of the Consumer Protection Act, 1986 against the impugned order dated 20.03.2014 passed by the Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench at Udaipur (for short the State Commission) vide which while allowing Appeal No. 99/2011, Shri Subashchandra Tulsiramji Sevak vs. Dr. Dilip C. Shah the order passed by the District Consumer Disputes Redressal Forum Udaipur dismissing consumer complaint no. 09/2010 filed by the present respondent no. 1 / complainant was set aside.
2. Brief facts of the case are that the complainant / respondent no. 1 Subhashchandra filed the consumer complaint in question, alleging medical negligence against the petitioner/OP Doctor, Dr. Dilip C. Shah, who is an ophthalmic surgeon at Himmatnagar, Gujarat and is running his hospital called Padmavati Eye Hospital. It has been alleged that the complainant approached the petitioner/OP Doctor with complaint of problem in his left eye. The said Doctor advised him surgery for cataract in the said eye. The surgery was performed by the OP Doctor in his hospital on 08.08.08 and a sum of ₹9,000/- was charged from the complainant/respondent no. 1. The complainant has alleged that he lost vision in his left eye because of wrong procedure done by the OP Doctor due to which he suffered retinal detachment in his left eye. He got another surgery done at a hospital in Mumbai and then at Dahod, but despite these two surgeries, his vision could not be restored. The complainant filed the complaint with prayer to grant a compensation of ₹ 10 lakh for loss of vision in eye, ₹ 1 lakh for deficiency in service, ₹ 1,000/- for mental agony and ₹ 5,000/- as cost of litigation.
3. The complaint was resisted by the petitioner/OP by filing written reply before the District Forum, in which he gave the version that the complainant first approached him on 01.08.2008 and he advised him surgery for cataract in the left eye. The complainant then got himself examined at Udaipur on 02.08.2008 from Dr. Anil Kothari, who also advised that he had developed cataract in the left eye.
However, the complainant decided to get the surgery done from the OP Doctor because of less expenses involved.
The surgery for cataract was performed on 03.08.2008 and not on 08.08.08. The operation was done without any complication and thereafter, the complainant visited his clinic on 08.08.2008, 20.08.2008 and 24.08.2008 when it was found that there was full vision in his eye. The complainant also got himself examined at Kandivali Hitvardhak Hospital, Mumbai on 2.09.2008 and got spectacle number for his eye for the purpose of lenses. The OP doctor has further stated in his reply that on 21.09.2008, the complainant told him on telephone that he was suffering from cold and snuffle and due to sneeze, his vision in the left eye had gone. The complainant came to his clinic on 25.09.2009 when it was found on examination that he had suffered retinal detachment due to sneeze. The patient was advised to go to Ahmedabad for treatment on account of retinal detachment. However, the complainant got himself treated at Mumbai. The Doctor has stated that there was no negligence on his part in the treatment of the patient and the retinal detachment was not due to the surgery performed by him. In fact, he was fully cured after the surgery for cataract and could see very well.
4. The District Forum vide their order dated 08.06.2011 dismissed the complaint saying that the complainant had not produced any evidence to prove that his eye-sight was lost due to negligence on the part of the OP Doctor. The retinal detachment had occurred after about 1 months of the surgery for cataract.
An appeal was filed by the complainant against this order of the District Forum before the State Commission, which was allowed saying that retinal detachment could not have occurred due to sneezing etc. The State Commission directed the petitioner Doctor to pay ₹4 lakh as damages and ₹ 11,000/- as litigation cost. It is against this order that the present petition has been made.
5. During the course of hearing before us, the learned counsel for the petitioner/OP Doctor took the plea that the cataract surgery performed at the clinic of the OP Doctor was not in any way responsible for subsequent retinal detachment suffered by the complainant. It has been stated in the written arguments submitted by the petitioner that on 03.08.2008, an intraocular lens was successfully implanted under standard surgical procedure without any complication. The patient came to the petitioner three times after the surgery, i.e., 08.08.08, 20.08.08 and 24.08.08 and he was not suffering from any problem. In fact, on 24.08.2008, it was found on medical check-up that the patient was having acquity 6/9 with 1.75 DSPH in the eye. The petitioner gave spectacle number to the complainant which showed that there was no loss of vision in the left eye. On 2.09.2008, the complainant got himself checked-up from Doctors at Mumbai and no problem was found with eyes. The learned counsel argued that retinal detachment which occurred much later, could be caused due to many diverse factors and hence, there was no cause for alleging medical negligence against the OP Doctor.
6. On the other hand, the learned counsel for complainant / respondent no. 1 argued that the State Commission had observed in their order that retinal detachment was an uncommon complication of cataract surgery.
It was made out, therefore, that such complication does not arise in usual course but if the retinal detachment has occurred in the present case, the Doctor must be negligent in performing the cataract surgery. The order passed by the State Commission was in accordance with law and should be upheld.
7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
8. The core issue in the present case revolves around the fact whether any negligence was shown by the OP Doctor in performing cataract surgery upon the left eye of the complainant which resulted in subsequent retinal detachment after a period of about 1 months. The OP Doctor has taken the plea that he was fully qualified to perform the surgery in question. He has also stated that after the surgery, the complainant visited him three times and there was no complaint regarding any loss of vision / damage to his eye.
In fact on 24.09.2008, i.e., 21 days after the surgery, the complainant was given spectacle number also, which shows that there was no complaint of retinal detachment by that time. This version of the OP Doctor has not been controverted anywhere by the complainant, making it clear that the retinal detachment occurred much later. Moreover, from the copies of the documents available on record pertaining to the treatment taken subsequently in Hospitals at Mumbai and Ahemdabad, it is not stated anywhere that the problem of retinal detachment was in any way connected with the cataract surgery. The State Commission have also observed in their order that retinal detachment was an uncommon complication of cataract surgery.
9. The petitioner has referred to medical literature on the subject stating that the retinal detachment could occur due to any of diverse factors. As per this literature, retinal detachment is disorder of the eye in which the retina peels away from its underlying layer of support tissue. Initial detachment may be localized, but without rapid treatment the entire retina may detach, leading to vision loss and blindness. It is a medical emergency. Permanent damage may occur, if the detachment is not repaired within 2472 hours. The potential causes or risk factors for retinal detachment have been listed as follows:-
Glaucoma AIDS Cataract surgery Diabetic retinopathy Eclampsia Family history of retinal detachment Homocysteinuria Malignant hypertension Metastatic cancer, which spreads to the eye (eye cancer) Retinoblastoma Severe myopia Smoking and passive smoking Stickler syndrome Von Hippel-Lindau disease The above literature has been taken out from Wikipedia.
10. During arguments as well, the learned counsel for the petitioner submitted extracts from medical literature saying that cataract surgery is among the most common and successful surgical procedures being performed. According to the American Society of Cataract and Refractive Surgery, 3 million Americans undergo cataract surgery each year with an overall success rate of 98% or higher.
It is clear, therefore, that in the present case, the surgical procedure has been performed by the OP Doctor in the usual course of business and there is no evidence of any medical negligence on his part.
11. The issue of medical negligence has been discussed in a catena of judgments passed by the Honble Apex Court and other courts/tribunals.
The Honble Supreme Court made the following observations in the case Achutrao Haribhau Khodwa and others versus State of Maharashtra and others [(1996) 2 SCC 634] as follows: :-
The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.
12. It is a well-established principle that if a doctor is duly qualified to perform a procedure and such job is done to the best of his ability with due care and caution and with ordinary skills and practice, the said doctor cannot be held guilty of medical negligence. The Honble Apex Court in their Judgment in the case Jacob Mathew v. State of Punjab [(2005) 6 SCC (1)] observe as follows:-
Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
13. In the present case, therefore, the allegation of medical negligence against the OP Doctor while performing cataract surgery on the complainant is not substantiated.
14. Another important issue in the present case is regarding the informed consent that was required to be taken from the complainant by the doctor before the said surgery was attempted. During the course of arguments, the learned counsel for the petitioner did say that after getting opinion from Dr. Anil Kothari at Udaipur, the complainant had given free consent for operation of the left eye and thus, there was no question of his being misguided by the OP Doctor. This version has also been stated in the written arguments given by the OP Doctor, but there is no material on record to say that informed consent was taken from the patient before performing the said surgery. On this issue, we may refer to the Judgment of Honble Supreme Court in Samira Kohli versus Dr. Prabha Manchanda & Anr. [(2008) 2 SCC 1]. While summarizing the principles relating to consent, the Honble Supreme Court, interalia, stated as follows:-
(i) A doctor has to seek and secure the consent of the patient before commencing a treatment (the term treatment includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
In the above case Samira Kohli versus Dr. Prabha Manchanda & Anr. (supra), the consent had been given by the mother of the patient, but still the the Honble Court held that it could not be treated as valid or real consent because the patient was a competent adult and no medical emergency was involved. It is evident, therefore, that in the case in hand, the OP Doctor is guilty of medical negligence on this score for not taking the informed consent from the complainant before the surgery.
15. From the above discussion, it is established that the charge of medical negligence against the OP Doctor is not proved and hence, the State Commission took an erroneous view that the OP Doctor should be made to pay compensation of ₹ 4 lakh for damages and ₹ 11,000/- as cost of litigation. However, it is crystal clear that the OP Doctor had not taken the consent of the complainant before performing surgery for which he is liable to pay compensation to the complainant. The order passed by the State Commission is, therefore, modified to the extent that the petitioner/OP Doctor shall pay a sum of ₹ 50,000/- to the complainant for his failure to obtain valid consent before performing surgery upon the left eye of the complainant. The payment shall be made within a period of 4 weeks from today failing which the OP Doctor shall be liable to pay interest @12% p.a. on the said amount from today itself. The revision petition stands disposed of accordingly.
Sd/-
(DR. B.C. GUPTA) MEMBER Sd/-
(V.K. JAIN J.) PRESIDING MEMBER RS/