National Consumer Disputes Redressal
Dr. Madhusudan N. Kumbhare vs Bherulal Bhimaji Oswal on 20 November, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 768 OF 2016 (Against the Order dated 26/11/2015 in Appeal No. 2337/2005 of the State Commission Maharashtra) 1. DR. MADHUSUDAN N. KUMBHARE R/AT RASTA PETH, SHIRAL SETH ROAD PUNE, MAHARASHTRA ...........Petitioner(s) Versus 1. BHERULAL BHIMAJI OSWAL R92, F WARD, LONAVALA, DISTRICT-PUNE MAHARASHTRA ...........Respondent(s) REVISION PETITION NO. 2443 OF 2016 (Against the Order dated 26/11/2015 in Appeal No. 2337/2005 of the State Commission Maharashtra) WITH
IA/8013/2016(Condonation of delay) 1. BHERULAL BHIMAJI OSWAL R/O. 92, F WARD, LONAVALA, DISTRICT PUNE, MAHARASHTRA. PUNE MAHARASHTRA ...........Petitioner(s) Versus 1. DR. MADHUSUDAN N. KUMBHARE OCCUPATION : MEDICAL PRACTITIONER R/O. RASTA PETH, SHIRAL SETH ROAD, PUNE. PUNE MAHARASHTRA ...........Respondent(s) BEFORE: HON'BLE MRS. M. SHREESHA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Petitioner : Mr. S.M. Kelkar, Advocate For the Respondent : Mrs. Sunanda R. Kumbhat, Advocate Dated : 20 Nov 2018 ORDER DR. S. M. KANTIKAR, MEMBER
1. These two cross revision petitions have been filed against the impugned order dated 26.11.2015 passed in F.A. No. A/05/2337 by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short, 'State Commission') whereby the State Commission allowed the appeal, by setting aside the order of the District Consumer Disputes Redressal Forum, Pune (for short, 'District Forum').
2. For the convenience, facts are drawn from Revision Petition No. 768 of 2016. The facts are that on 11.1.1999 Complainant Bherulal Bhimaji Oswala( herein referred as 'Patient' resident of Lonavala had developed cataract in his right eye. He approached OP/Dr. Madhusudan N. Kumbhare at his clinic in Pune. OP after examination advised the patient for removal of cataract in the right eye. The cataract operation was performed on 19.1.1999 at 8.00 p.m. in Sushrut Hospital, Pune and patient was discharged at 9.15 p.m. During night patient stayed in Pune and on the next day i.e. 20.01.1999 visited OP with complaint of severe pain in the operated eye. As stated by the complainant - OP removed the bandage of operated eye and applied a fresh bandage, prescribed medicines Tablet Betnesol, Fluer Eye drops and gave black goggles and called for check-up on 23.1.1999. The complainant returned to his place at Lonavala on 20.1.1999,but the pain in eye got increased with severe headache. On 23.01.1999, the complainant with his wife and son visited the clinic of OP. OP removed the bandage and examined the operated right eye. Complainant was unable to open the operated eye because of oozing of sticky material. The entire bandage was soaked with it. The OP prescribed medicines like Tab. Cifran CT, Tab. Combiflam, Nebracin DM, and Oculon eye drops. OP assured the complainant that the operation was successful and his pain would subside and vision would be restored. The patient was called for follow up on 25.01.1999. But on 24.01.1999 complainant became restless because of severe pain and headache. There was constant oozing of sticky material from the operated eye. Therefore, on the next day complainant rushed immediately to the OP who prescribed some medicines and painkillers only and assured that normal vision would be restored soon. However, condition of the patient went on deteriorating further and the pain got worsened. On 26.1.1999 patient along with his son went to OP, who prescribed some medicines and called the patient on the next date. On 27.1.1999, the OP cleaned the operated eye with cotton swab and assured that the eyesight will be restored within a couple of days. The complainant alleged that on 27.1.1999 for the first time, OP had advised blood sugar check-up, which was never conducted prior to the operation. Thus, it was the deficiency on the part of OP, who failed to complete the mandatory requirements before the cataract surgery. The condition of patient did not improve, patient had excruciating pain in the operated eye with headache, therefore, for 2nd opinion patient with his son visited one eye surgeon, Dr. Chitra Khare in Pune, who after examination diagnosed it as a case of Endophthalmitis with Corneal Abscess and advised for evisceration of right eye to avoid any damage to the brain. The complainant and his family members shocked to hear the opinion of Dr. Chitra Khare. For re-confirmation, the complainant had consulted Dr. Nitin Prabhudesai, who had also confirmed that the operated eye was completely damaged and refused to admit patient in his hospital. As patient could not get admission in any hospital, as a last resort, he approached the Military Hospital (AFMC) on 29.01.1999; wherein the doctors diagnosed it as a case of Endophthalmitis. The complainant got admitted in Military Hospital on 29.01.1999 under Col. P. G. Dash and underwent an operation, however, the doctors succeeded in retaining the eyeball, without a vision. Complainant was discharged from Military Hospital on 19.02.1999. The complainant alleged that it was the deficiency in service and negligence during the treatment which caused loss of his right eye. The complainant filed complaint before the District Forum, Pune.
3. The OP filed written version and denied the all allegations. According to OP, he had successfully performed the Cataract surgery on right eye of the patient. After the operation, patient himself has not taken proper care of his right eye. Report of Dr. Chitra Khare did not state that the cataract operation was negligently performed. The complainant has not filed any expert evidence from the doctors at Military Hospital. Even, the discharge summary of Military Hospital did not disclose negligence during operation. Complainant had neither filed a report from Civil Surgeon nor opinion of expert from any other hospital in Pune. The medical record and literature did not confirm negligence of OP during or post-surgical management.
4. The District Forum on the basis of pleadings and evidence dismissed the complaint. Being aggrieved, the complainant filed first appeal before the State Commission. The State Commission held the OP negligent while performing operation and treatment during post-operative period. The State Commission allowed the appeal and directed the OP to pay compensation of Rs.3,50,000/- to the complainant within two months, failing which, 12% per annum interest was imposed from the date of order.
5. Being aggrieved by the impugned order, both the parties have filed the revision petitions. Revision petition No. 768 of 2016 was filed by the OP for dismissal of the complaint whereas Revision petition No. 2443 of 2016 was filed by the complainant for enhancement of compensation.
6. We have heard the learned counsel for both the parties. The counsel for the treating doctor submitted that the patient did not follow the post-operative instructions, which resulted into damage to his eye. There was no expert testimony before the lower fora, but the State Commission on the basis of some medical literature erroneously concluded that it was negligent act of the petitioner. Dr. Chitra Khare and Dr. Nitin Prabhudesai who have examined the patient after surgery have categorically ruled out any fungal/bacterial infection. Therefore, on a mere presumption of possibilities the doctor should not be held negligent, which may cause damage to his reputation. The counsel submitted that on 20.01.1999, the petitioner-doctor examined the complainant and recorded the observations. As per record, no pain in the operated eye and the wound was healing properly. The dressing was removed and complainant was instructed to wear black goggles and take prescribed medicines. He was called for follow up after 8 days. On 23.01.1999, complainant visited the petitioner with a new bandage/dressing on his right eye. The patient had stopped medicines, changed the eye dressing and gave evasive answers for it. As, patient was unable to open the operated eye and some sticky substance was oozing from the wound, OP examined the patient and found that it was due to traumatic injury to right eye. Therefore, OP prescribed anti-biotics and anti-inflammatory medicines to the complainant with strict instructions. The State Commission failed to consider the discharge report from Military Hospital or the Report of Dr. Chitra Khare who diagnosed it as Endophthalmitis, but did not mention anything about negligence at the time of operation. It was categorically recorded that no bacterial or fungal infection was found (Annexure P3-P5). However, without appreciating the facts and only relying upon some general medical literature filed by the Complainant the State Commission allowed the appeal.
7. We have perused the medical record of OP, Military Hospital and the other doctors who had examined the patient. On 27.01.1999 patient contacted an eye surgeon Dr. Talsiwal, Dr. Chitra Khare and Dr.Nitin Prabhudesai, everyone opined it as a case of Endophthalmitis. As was stated by the complainant that other doctors were not ready to admit him, hence he approached to Military Hospital, Wanawadi wherein he was treated from 29.01.1999 and discharged on 19.02.1999. The doctors of the Military Hospital succeeded in retaining the eye ball but the vison was not regained.
8. The crux of the instant case is whether loss of right eye of the patient was due to negligence of OP or not ?
It is pertinent to note that three doctors who examined the patient's operated right eye opined that it was a case of Endophthalmitis. It was due to traumatic injury of eye. None of the doctors opined that the injury was due to negligence during operation. At the Military Hospital it was observed that , Intra Ocular Lens (IOL) was partially extruded and the same had to be removed by limbal section. For cosmetic beauty, patient's eyeball was saved however there was no vision.
9. After our thoughtful consideration and going through the medical record on file, it is an admitted fact that the complainant underwent cataract operation of right eye on 19.01.1999. He was referred by Dr. Shirish Shrimal to the OP/doctor in January, 1999 when the complainant was medically fit. However, he had not conducted any investigations. After surgery OP had advised blood sugar level check-up, which was done on 23.11.1999 and found to be normal. We do not find more significance for not doing pre-operative sugar level, as the fitness was already given by Dr.Shirish Shrimal.
We further note that, the complainant on 23.01.1999 i.e. within three days approached OP with a new dressing and pad, which was not put when the complainant was sent on 20.01.1999. There was no explanation from the patient for why and from where he has applied new pad and dressing? On perusal of the case papers of the treatment, we do not find any discrepancy as observed by the State Commission. It is pertinent to note that the OP/doctor had noticed that the new bandage was applied by the complainant and the complainant was not disclosing, why and who had applied the new bandage. According to the clinical notes dated 23.01.1999 of OP, there was Oedema of lids, Cornea with very hazy with abscess and anti-chamber - Hypopion ++ and anterior chamber. The lens was not in the position but it was shifted towards the wound. The perception of light (PL) was doubtful. OP treated the patient with antibiotics (Cifran-CT) and anti-inflammatory/pain killer (Combiflam) and to advised two eye drops also. In our view, due to traumatic injury to the right eye there was displacement of the lens and the above features. We do not find any fault for advising the anti-biotics and the anti-inflammatory drug on 23.01.1999.
It is pertinent to note that the patient sought second opinion from Dr. Chitra Khare, Dr. Tasliwal, who on examination confirmed it as Endophthalmitis with corneal abscess and opined for evisceration of right eye. Same diagnosis was made at Military Hospital and the patient was treated there accordingly. Moreover, the complainant had failed to produce any cogent and supportive evidence from Dr. Chitra Khare/ Dr. Prabhudesai or from Military Hospital to prove his case. The State Commission had relied upon the medial literature from the medical book "Basic Ophthalmology". As per medical literature, the eitopathogenesis of Endophthalmitis is an inflammatory process.
10. Considering the facts and specificities of this case, the cataract surgery performed by OP was as per the standard of practice. The development of endophthalmitis was due to traumatic injury. We do not find any fault or deficiency during cataract surgery. Further, it is pertinent to note that the post-operative follow up was advised by the OP, but patient on his own changed the dressing of operated eye. The displacement of lens and the infection appears to be a traumatic in nature. On the basis of foregoing discussion, the order of State Commission is set aside. The revision petition No. 768 of 2016 filed by the OP/doctor is allowed and the revision petition No. 2443 of 2016 filed by the complainant is dismissed; consequently, the complaint is dismissed.
However, there shall be no order as to costs.
...................... M. SHREESHA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER