State Consumer Disputes Redressal Commission
Raj Kumar Narula vs Satish C. Gupta on 3 April, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 03-04-2006 Complaint Case No. C-105/98 Shri Raj Kumar Narula - Complainant S/o Shri Jagpal Dutt Through R/o Flat No. 13, Priya Appartment, Mr. Ashutosh Sharma, Sector 14, Rohini, Advocate. Delhi. Versus (1) Dr. Satish C. Gupta - Opposite Party No.1 16, Bunglow Road, Through Delhi 7. Mr. Mala Narayan & Mr. Kamal Shankar, Advocates. (2) New India Assurance Co. Ltd. Opposite Party No. 2 1/704, G. T. Road, Shahdara, Through Delhi-110032. Mr. Bharat Sachdeva, Advocate. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal- Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) On account of having lost vision due to the negligence of the OP-Dr. S.C. Gupta in as much as that he had left the silicon oil in the eye of the complainant for inordinately long and more than the prescribed period, the complainant has sought through this complaint compensation of Rs. 7,55,000/-.
2. The allegations of the complainant in brief are as under:-
3. That on 31-03-1994 the complainant was to be operated for cataract in the left eye and as such got himself examined from OP No.1. After examining the complainant OP opined that since there was a small hole in the retina, complainant has to be operated initially for the same and subsequently cataract will be removed. The complainant as per advice of the OP agreed for first operation for the said problem. The OP performed the operation on 03-04-1994 and charged Rs. 8,000/- which was duly paid by the complainant. He was regularly being checked by OP. In the second week of May 1994 OP suggested to get his eye operated for cataract with the assurance that after the said operation his eye will function normally. On the advice of the OP the complainant got his eye operated for cataract in third week of May 1994 for which charged a sum of Rs. 6,000/-.
4. After the said operation the eye of the complainant was functioning normally and complainant was regularly getting himself checked up from the OP. In the first week of January 1994 the OP after checking the complainant stated that there was a problem in retina and as such ECCE has to be carried out. OP kept on assuring that there will be no problem and as such carried out ECCE on 08-06-1994. After the said test the OP stated that complainants eye has to be operated again and performed surgery on 14-06-1994 and charged Rs. 5,000/- for the said operation. After the said surgery the eye retina was not functioning properly.
5. OP injected silicon oil in the eye but it further deteriorated the vision. Since there had been no improvement in the eye of the complainant as such he again suggested for an operation for which OP charged a sum of Rs. 4,000/-. The said operation was performed on 17-7-94 and silicon oil was again injected. Thereafter complainant was regularly getting himself examined from the OP and using the medicines as prescribed by the OP. Despite continuous treatment there had been no improvement in the eye and vision kept on deteriorating.
6. Thereafter eye pardha of the complainant started shrinking and he was facing acute problem. On this, OP suggested that eye of the complainant had to be changed. On 07-01-1997 the OP conducted the corneal grafting and removed the silicon oil and charged a sum of Rs. 5,000/- for the said operation. But even after said operation there was no improvement in the eye of the complainant and vision of the complainant totally deteriorated.
7. OP had operated the complainant five times and in this manner made complainant pay a sum of Rs. 40,000/- for the said operation but caused loss of vision in the eye of the complainant. This negligent and unethical behaviour of the OP made the life of the complainant totally insurable as complainant was not able to see in future. Hence this complaint.
8. OP completely absolved himself from the allegation of medical negligence in performing any of the operations.
According to the OP he is a qualified eye surgeon having vast experience in treating problems related to the eyes including retinal cases similar to the eye problem of the complainant.
According to him on 31-03-1994 he conducted a detailed examination of the eyes of the complainant and it was revealed that the complainant was suffering from not only immature cataract but also from retinal detachment in the left eye and was found to be totally blind in the right eye and the complainant told that approximately five years back as he had suffered from similar problem in the right eye and had got himself operated for cataract but he was unable to get his vision back despite the said surgery. He further told that he also suffered from advanced retinal detachment in the right eye leading to irreparable blindness due to the PVR i.e. Proliferative Vitreo Retinopathy which in laymans term means contraction of retina and vitreous.
9. Admittedly he operated upon the left eye of the complainant on 03-04-1994 for retinal detachment by using External Buckle Temponade but according to him no silicon oil was used in this surgery. The retina was fully visible with the help of ophthalmoscope. He further pleaded that cataract removal surgery was done first as the chances of success of retina detachment surgery would have minimised interalia for the simple reason that the Retina Detachment surgery could not have been performed before the lapse of one month from the cataract removal which could have caused further complications and deterioration in the condition. Retinal detachment has to be treated as expeditiously as possible for chances of success in the said operation.
10. Further that on 26-06-1994 for fresh detachment of retina in the lower part he used external buckle temponade and without using any silicon oil and on 07-07-1994 it was detected that the retina had again got detached and that the cause for the same was shrinkage of vitreous which had pulled on the retina thereby opening up the tear. In order to treat this the normal known method of treatment was given, that is the vitreous was taken out, silicon oil was injected on 17-7-1994 for the first time. OP also alleged that the complainant was suspected to have developed fungal infection in the operated eye necessitating change of silicon oil which was done on 14-08-1994 and an anti fungal treatment started and the infection was controlled in a weeks time. Six months after the surgery on 17-07-1994 the complainant was asked to come for removal of silicon oil since the said oil, if left in the eye, causes various complications.
11. On 18-06-1996 when the complainant again visited the OP it was advised to him that he should get the silicon oil removed but he again refused to get it removed and developed corneal opacity and in January 1997 the oil was removed from the eye and cornea was changed by corneal grafting and he was advised to come on 05-02-1998 but he failed to turn up.
12. Thus in nutshell the stand of the OP is that line of treatment given by him was as per the standard norms followed in such cases of retinal detachment and immature cataract. In this regard he produced two certificates, one given by Dr. Cyrus M. Shroff and another by Dr. S.K. Narang certifying that upon studying the case records, the line of management followed by the OP in the case of the complainant is according to the standard and norms followed in such cases and it is not due to kind of negligence of the OP that the complainant has lost his sight.
13. Certificate of Dr. Cyrus M. Shroff of Shroff Eye Centre (R-3) is as under:-
I have gone through the cause case records of Mr. R.K. Narule R/o 23/4, Chadha Bhawan, Shakti Nagar, Delhi who was under the treatment of Dr. S.C. Gupta at his clinic at 16, Bungalow Road, Delhi-110007 from 31st March 1994 to 5th February 1998.
In my opinion the line of management followed by Dr. S.C. Gupta is according to the sandard norms followed in such cases of retinal detachment and immature cataract.
14. Similarly certificate of Dr. S.K. Narang of Narang Eye Institute Laser & Retina Centre(R-4) is as under:-
I have studied the case records of Mr. R.K. Narula resident of 23/4, Chadha Bhawan, Shakti Nagar, Delhi who was under the treatment of Dr. S.C. Gupta at his clinic at 16, Bunglow Road, Delhi-7.
The line of management followed by Dr. Gupta is according to the standard norms followed in such cases especially the operation of retina detachment before the cataract operation was a better operation because of cataract is operated first then RD surgery has to be delayed for a month which reduces the chances of success of RD surgery.
Recurrence of RD is a common occurrence after extra capsule cataract extraction which is preferred mode of cataract in cases of RD.
The only mode of management of recurrent RD with PVR (Proliperative VitreoRetinopathy) is by vehectomy & internal temponade by silicon oil or gas. Since in 1994 intraocular gases were not easily available silicon oil was used in most of the cases.
15. Opinions of doctors of Shroff Eye Centre and Narang Eye Institute are with regard to immature cataract and advanced retina detachment whereas as per summary of the case produced by the OP himself it was a case of advanced cataract, total inferior retina attachment. In this regard the complainant has produced opinions of different doctors with regard to the following query:-
(1)My father aged 60 years has advanced nuclear cataract and retinal detachment (with sub-total interior upper Tem break, Both in his left eye, which of the following is advisable
(i) Advanced Nuclear cataract surgery and then followed by retinal detachment surgery.
(ii) Retinal detachment surgery and then followed by advanced nuclear cataract surgery.
(iii) Or any other valuable suggestions.
16. Opinion of Dr. Mahipal Sachdeva of Centre for Sight as under:-
Both can be done simultaneously in the same sitting after complete evaluation.
17. Opinion of Dr. Anshu Sahai, Eye Specialist, Working at Sahai Hospital & Research Centre, Jaipur, Rajasthan is as under:-
In my opinion, both surgeries can be done together in a single sitting (surgery) which would save the cost and the hassle of repeated surgery. Any good Eye Centre would be able to do both surgeries together very comfortably. Still in case both are not done together, I would feel that the cataract surgery should be done earlier, as the cataract hampers the visualization of the R.D. and makes the surgery more difficult. What however is of the utmost importance is that the RD surgery should not be delayed too much as delay reduces the chances of a good visual recovery.
Please feel free to contact6 for further support:
Dr. Anshu Sahai 0141-5063336, Sahai Hospital & Research Centre, Jaipur, Rajasthan.
Please Note : This is a preliminary opinion provided without seeing the patient. Depending on the actual physical condition of the patient, the advice may need to be modified or altered accordingly as best suitable to the exact condition.
18. The complainant also went to AIIMS where the doctor opined that it was a case of poor surgical prognosis and chances of recovery therefore was less.
19. Supreme Court has laid down guidelines for determining the medical negligence in number of cases. The first of such case is Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and Another, AIR 1969 Supreme Court 128 wherein the following criteria and duties of the doctors and the guidelines for the doctors to treat the patient were laid down:-
The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is professed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of the treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires; The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.
20. Latest judgment of Supreme Court in this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Supreme court has laid down the following criteria.
(3) 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, which reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4)The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
21. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are -
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
22. In the above referred case the patient was very old and in advanced stage of terminal cancer when he experienced breathing difficulties about 11 P.M. at night and succumbed due to non-availability of oxygen cylinders.
The question arose whether the hospital can be held liable in tort for the non-availability of oxygen cylinder and whether the doctor in case of non-availability of oxygen cylinder can be proceeded for criminal action as contemplated under section 304 IPC.
23. As is apparent, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence. The test for holding the medical professional liable for criminal negligence, negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas under the provisions of Consumer Protection Act, 1986 the person who receives medical services against consideration is entitled to a compensation as to the injury or the loss suffered by him due to negligence of the doctor which in terms of Consumer Protection Act 1986 has been categorised as deficiency which is defined by Section 2(1)(g) as under:-
any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
24. Let us assume that it was case of retinal detachment and immature cataract and the OP was well qualified and competent enough to treat and operate upon the complainant as in the opinion of Dr. Sachdev and Sahai both the surgeries can be done together in a single sitting which would save the cost and the hassle of repeated surgery. Still the fact remains that the silicon oil left in the eyes for more than 2 years beyond the maximum prescribed period of six months.
25. As per case summary vitrectomy was performed on 17-07-1994 and silicon oil was injected in the eye and thereafter silicon oil was refilled on 14-08-1994. The said silicon oil remained in the eye of the complaint for about 2 years and was finally removed on 07-01-1997. It is not the case that OP did not know that if for such a long duration silicon oil remains in the eye it has very adverse effect as he has stated that if the silicon oil is left in the eye for long period the same can cause various complications but he did not remove it because the complainant insisted for not removing it.
26. By no stretch of imagination one can accept such a plea, as it is duty of the doctor to remove the silicon oil in order to avoid future complication and consequences.
27. May be that the OP was not negligent in performing or conducting the operations being well qualified but he was definitely negligent in not removing the silicon oil. This sole circumstance of gross negligence has resulted in the damage to the cornea and coprneal endothelium, which led to Bullous Keratopathy. The plea of the respondent that the complainant did not visit him after 14th July 1995 till June 1996 is falsified as the documents prepared by OP (Annexure R-2), which is medical case record, clearly show that the complainant had been regularly visiting the OP between 14-08-1994 till 10-0-1997. During this period as many as 26 times OP examined the complainant, the dates of examination are specifically mentioned in the said record. So much so the OP issued a certificate dated 14-09-1995 to the effect that the vision of the complainant is not enough for any gainful business.
28. According to the OP himself the silicon oil was to be removed after six months as later it has various complications and inspite of the complaint having visited the OP on more than 26 occasions as is evident from the prescription of the OP, the details of which have been given in the affidavit of the complainant, the OP did not care to remove silicon oil.
29. Thus negligence on the part of the OP in not removing silicon oil in time is writ large. Effect of the silicon oil if not removed beyond the period of six months is well demonstrated and can be culled out even from the internet as has been done by the complainant. Some of these as under:-
(a) While silicon oil is inside the eye the vision is extremely poor. A second operation therefore has to be performed to remove the silicon oil usually within few months following the initial surgery.
(b) Removal of silicon oil is required since it originates sort of emulsion that increases the optic pressure. Therefore removal of silicon oil is necessary to keep the optic pressure steady.
(c) The development of cataract often has a side effect after silicon surgery.
(d) Silicon oil can promote cataracts, cause glaucoma and may damage the cornea.
(e) The chances of corneal abnormalities in eyes randomised to silicon oil remains high.
(f) Because of the lower specific gravity and lower surface -tension of silicon oil in comparison with the aqueous phase of the vitreous, an influence on the blood flow in the retinal vessels would be expected.
(g) The prolongation of arteriovenous passage times observed in silicon filled eyes indicates that the microcirculation is worsened.
30. The cumulative effect of all these facts and circumstances show that the complainant lost his vision due to the negligence of the OP in not removing the silicon oil for about more than 2 years inspite of the fact that he had examined him on as many as 26 occasions knowing it well that retention of silicon oil in the eye for such a long time can promote cataract, cause glaucoma and may damage the cornea further with the chances of corneal abnormalities in the eyes randomised to silicon oil remains high.
31. In the given facts and circumstances of the case we allow the complaint and deem that compensation of Rs. 50,000/- for mental and physical injury as the complainant is totally blind as he had already lost vision of his one eye and Rs. 10,000/- as cost of litigation would meet the ends of justice.
32. Complaint is allowed and disposed of in aforesaid terms.
33. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
34. Copy be sent to all the District Fora.
35. Announced on the 3rd day of April 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj