National Consumer Disputes Redressal
Sri Subhendu Majumdar vs Dr.Ashish Kumar Bhattacherjee & Anr. on 31 May, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 191 OF 2005 (Against the order dated 28.01.2005 in S.C. Case No. 175/O/1999 of the State Commission West Bengal) Sri Subhendu Majumdar ........ Appellant S/o Late Lakshman Chandra Majumdar R/o 53/2/1-B, Dr.K.D.Mukherjee Road Police Station, Behala, Kolkata Vs. 1. Dr.Ashish Kumar Bhattacherjee ......... Respondents Chamber at M.M.Medical Centre 256, Rash Behari Avenue, Kolkata 2. K.D.Cure S.C.Das Memorial Medical & Research Centre at 52, Jodhpur Park Kolkata BEFORE: HON'BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HONBLE MR. ANUPAM DASGUPTA, MEMBER For the Appellant : Mr.Samir Choudhary, Advocate with Mr.Prabir Basu, Advocate Mr.Sanjoy Kumar Ghosh, Advocate For Respondent : Mr.Ujjwal Banerjee, Advocate with Mr.Asit Kumar, Mr.Partha Sil, Mr.A.K. Sil, Mr.Santanu Dutta, Advocates Dated : 31st May, 2011 ORDER
PER JUSTICE R.C.JAIN, PRESIDING MEMBER Aggrieved by the dismissal of his complaint ( SC Case No.175/O/97) by the West Bengal State Consumer Disputes Redressal Commission, Kolkata vide order dated 28.01.2005, Subhendu Majumdar has filed the present appeal. The complaint was filed before the State Commission alleging medical negligence and deficiency in service on the part of the opposite parties i.e., Dr. Asish Kumar Bhattacharjee Opthalmologist OP No.1 ( to be referred as Opthalmic Surgeon) and K.D.Cure S.C.Das Memorial Medical & Research Centre OP No.2 ( to be referred as Nursing Home) in giving treatment to the complainant viz., in relation to cataract surgery of his right eye with Intra Occular Lens implant on 15.10.96 and during the post surgery period, claiming a total compensation of Rs.19,05,529.30/-
2. Before we dwell on the disputed questions / controversy raised in the present case we may in nutshell note the undisputed facts.
The complainant is a practicing advocate in the District Courts of Alipore ever since 1984. In August 1996 he went to Sankara Nethralaya, Chennai for the removal of cataract from his right eye. The doctor after examination of his eyes suggested that T.C.Cryo was required to be done before conducting the cataract operation in order to prevent retinal detachment. Accordingly, the complainant underwent the said procedure / T.C.Cryo at Sankara Nethralaya without any complication. He was advised to return back for the cataract surgery in October 1996 during puja holidays. However, after his return to Calcutta, the complainant under the advice of his client consulted OP No.1 Opthalmologist and being impressed with his advice, decided to undergo surgical procedure for cataract removal and intra ocular lens implant at the hands of OP No.1 Opthalmologist. After requisite tests, the surgery was scheduled at OP No.2 Nursing Home on the morning of 15.10.96. Accordingly, complainant got admitted in OP No.2 Nursing Home in the evening of 14.10.96 and underwent a cataract removal surgery and intra ocular lens implant at the hands of OP No.1 in the morning of 15.10.96.
After his stay for about 24 hours in the nursing home, he was discharged from the OP No.2-nursing home in the morning of 16.10.6. After reaching home in the evening, the complainant felt discomfort, headache, vomiting etc, for which the relations of the complainant contacted OP No.1 who going by the above noted clinical symptoms reported to him told them that complainant was suffering from acidity and indigestion and, therefore, advised the complainant / relations to consult general physician by the name of Dr.S.K.Neogi. Accordingly, complainant consulted the said physician who prescribed some antacids and injection like calmpose.
Even after taking the said treatment, the condition of the complainant did not improve and he continued to have pain in his operated eye and headache etc. Therefore, OP No.1 was again contacted and was requested to see the complainant at his residence but OP No.1 did not visit. On the morning of 18.10.96 complainant saw OP No.1 at his clinic and after examination OP No.1 noticed that complainants operated eye was infected and he was suffering from Endophthalmitis and, therefore, advised the complainant to undergo emergency vitractomy of his right eye at Sankara Nethralaya. On the same evening, the complainant flew to Chennai and after reaching there, the complainant contacted Sankara Nethralaya authorities and was taken to the emergency ward where he was examined by the doctors including senior doctors / specialist and it was noticed that he complainant was having pain, redness, watering and decreased vision in the right eye for two days.
He was diagnosed to have post operative endophthalmitis. As the Intraocular pressure in the right eye of the complainant was found to be on higher side, complainant was advised ultrasound which showed plenty of low reflective echoes in the vitreous cavity with incomplete posterior vitreous detachment. However, retina was found to be attached. Complainant was given intravitreal vancomycin and Amikacim alongwith decadron besides certain other antibiotics, steroids and drugs. On 23.10.96 vitrectomy with intraocular lens removal procedure was performed on the complainant under general anaesthesia.
The vitreous sample sent during the surgery showed gram negative bacilli growing on culture on the first post operative day which was identified as Pseudomonos aeruginosa. On 06.11.96 second procedure vitreous lavage was performed and thereafter the complainant was discharged from the hospital. However by that time the complainant had lost his right eye, rendering him a visually impaired person as a result of which the complainant has suffered pecuniary and non pecuniary damages.
3. Now we come to what can be termed as instances of medical negligence or deficiency in service as put forth by the complainant in the said treatment at the hands of OP No.1 at the nursing home of OP No.2 or post surgical management of his right eye. Though in his complaint, the complainant has tried to paint a picture that under the advice of his client he consulted OP No.1 and had also agreed to get the procedure done by him under certain misrepresentation / belief about the competence and expertise of OP No.1 but perhaps in his heart he was not convinced of the same. We must reject this plea of the complainant at the outset because to get the procedure through OP No.1 was the voluntary decision of the complainant, may be based on the advice of certain client or his own belief. In any case the complainant has made no grievance either about the qualification, skill or expertise of OP No.1 in conducting such a procedure. Learned counsel for the appellant also did not raise even a finger in that behalf.
4. Going by the chronology of events, the first and foremost instance of medical negligence and deficiency in service put forth by the complainant is in regard to the complainant having contacted infection and complication of opthalmitis which is attributed to the faulty procedure adopted by the doctor in conducting the surgery and the unsterlized condition prevailing in the operation theatre or the room of the nursing home where the complainant stayed after the procedure.
b. The next instance of alleged negligence is that soon after he underwent the surgical procedure, he felt severe pain in his operated eye and despite making the complaint to the nursing home, the OP No.1- doctor did not visit him during the whole day of 15.10.96.
c. OP No.1- doctor released / discharged him pre maturely from the nursing home in the morning of 16.10.96 though the complainant was still having pain in his operated eye.
d. OP No.1 neglected when informed to him on phone in the evening of 16.10.96 and responded casually by stating the complaint as relatable to indigestion / acidity which was required to be treated by a general physician.
e. OP No.1 neglected to visit the complainant at his residence on 16.10.96 to 17.10.96 despite he having been repeatedly informed about the serious condition of the complainant.
f. OP No.1 showed a casual approach even on 18.10.96 when the complainant visited him and simply told him that complication had developed for management of which he should immediately go to Sankara Nethralaya, Chennai.
5. We have heard the learned counsel for the parties and have considered their submissions. As noticed above, it is not disputed that after surgical procedure for the removal of cataract and intra ocular lens implant in his right eye at the hands of Op No.2, the complainant suffered the complication what is described in medical terms as Endopthalmitis. Therefore, the crucial question which will decide the fate of present appeal is whether the onset of the said complication was a result of any act of omission or commission as alleged by the complainant on the part of the opposite party no.1 which in turn can amount to negligence and or deficiency in service.
6. A great deal of arguments have been advanced from the side of appellant in order to assail the finding of the State Commission as not based on correct and proper appreciation of the respective pleas and the evidence and material put forth by the parties on record. In any case it is contended that findings of the State Commission are not in consonance with the law as laid down by the Apex Court and this Commission in several of its decisions. On the other hand, learned counsel for the respondents have not only supported the findings and order of the State Commission as fully justified but has advanced several additional contentions in order to rule out any negligence or deficiency in service on the part of the opposite parties.
7. The question as to when a medical professional can be held guilty of medical negligence / gross medical negligence and culpable medical negligence, has been considered by the Supreme Court in several of its decisions starting from Bolam V Frirn Hospital Management Committee ( 1957) 1 W L R 582, Spring Meadows Hospital & Anr. V Harjol Ahluwalia (1998) 4 SCC 39, Indian Medical Association V. V.P.Shantha & Ors. (1995) 6 SCC 651, Dr.Laxman Balkrishna Joshi V. Dr. Trimbak Bapu Godbole & Anr. (1969 (1 SCR 206, Jacob Mathew Vs State of Punjab & Anr.
8. On a scrutiny of the said cases and some other case, the Supreme Court in the case of Kusum Sharma & Others Vs Batra Hospital & Medical Research Centre 2010 (2) Scale laid down the following principles which may be kept in view while deciding the question whether medical professional is guilty of negligence or not:
a. Negligence is the breach of a duty exercised 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.
b. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
c. The medical professional is expected to bring 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.
d. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
e. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
f. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
g. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
h. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
i. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
j. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
k. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
9. In the present case there is no allegation that OP No.1 opthalmologist was not a qualified, skilled and experienced opthalmologist for conducting the cataract surgery. The very fact that appellant had approached OP No.1, may be under advice of some client, will by itself show that complainant must have satisfied himself about the skill, experience and reputation of OP No.1 as a competent opthalmologist especially when after undergoing some treatment at Sankara Nethralaya, he was advised to return to Sankara Nethralaya for the removal of the cataract in the pooja holidays of 1996 but he preferred to avail the services of OP no.1. There is also no denial of the position that before conducting the cataract surgery, OP No.1 got conducted several pathological and other tests in order to judge the fitness and suitability of complainant for undergoing such a procedure.
10. According to OP No.1, the surgery conducted by appellant was uneventful and successful and he did not find any abnormality or complication till the time of discharge of the appellant from the nursing home on 16.10.96. Discharge slip placed on record will bear the testimony to this effect. The allegation of the complainant that he was discharged prematurely as he was not in good condition, does not appear to be tenable because had it been so, the complainant would not have got himself discharged from the nursing home in the morning of 16.10.96. Under these circumstances it is quite logical to conclude that in all probabilities the complication of Endopthalmitis had developed in the eye of the complainant after he was discharged from the nursing home and during his stay at his house. From the medical record of Sankara Nethralaya, it is evident that said Endophthalmitis was caused due to the presence of pseudomonas bacteria. Where and from which source the complainant got that bacterial infection in his eye is an intriguing question which is not easy to answer. What could be the possible source of such pseudomonas bacterial infection has been stated in Results of Endophthalmities Vitrectomy Study as stated in the book Clinical Opthalmology A systematic Approach, Third Edition by Jack J. Kanski, MD, MS, FRCS, FRCOphth.
What are the possible causes and source of aseptic endophthalmitis arising from pseudomonas bacteria has been stated as under:
ACUTE BACTERIAL ENDOPHTHALMITIS Acute endophthalmitis is a devastating complication that occurs is about 1 in 1000 cases. Despite early treatment about 50% of eyes become blind.
In order of frequency the most common causative organisms are Staph. Epidermidis, Staph. Aureus, Pseudomonas sp. And Proteus sp. Although in most cases the source of the infecting organism cannot be identified with certainty, it is thought that the patients own external bacterial flora of the eyelids, conjunctiva and lacrimal drainage passages is the most frequent culprit. Other potential sources of infection are contaminated solutions and instruments and environmental flora including that of the surgeon and operating room personnel.
Prevention
1. Treatment before surgery of pre-existing infections such as staphylococcal blepharitis, conjunctivitis and dacryocystitis.
2. Preoperative prophylactic antibiotics (gentamicin every 10 minutes for 1 hour before surgery) to decrease the patients own bacterial conjunctival flora.
3. Povidone-iodine 5% solution is prepared by diluting the full strength 10% Betadine aqueous solution used for skin preparation with balanced saline solution. Two drops of the diluted solution are instiled into the conjunctival sac and the eyelids gently manipulated to distribute the solution over the ocular surface. Following preparation of the skin and draping the eye is irrigated with saline solution.
4. Postoperative anterior sub-Tenons injection of anti-biotics.
5. Meticulous attention to aseptic surgical technique and isolation of the lashes and lid margins from the operative field.
In medical science cause of post operation Endophthalmitis may be several as has been pointed out in Cataract Surgery and its Complication, 5th Edn, by Norman Jaffe at Page 507/8 Source of Infection
1. Airborne contaminants a. Respiratory origin b. Surface origin (skin, clothing and so on) c. Air conditioning system.
2. Solutions and medications a. Saline for irrigation and other purposes b. Collyria c. Ointment d. Instruments disinfectants e. Skin antiseptics f. Alpha-cymotrypsin
3. Tissues a. skin of hand.
b. Skin of operative field c. Lid margins and lashes d. Conjanctival sac.
e. Lacrimal sac f. Nasal mucosa g. Corneal grafts h. Vitreous implants i. Fellow eyes.
4. Objects and materials a. Optical instruments b. Surgical instruments It is also well accepted in medical science that post operative endophalmitis may occur even in a flawless surgery. In this respect it has been written in Chapter 13 of Text Book of Opthalmology- Lens and Catract- Vol-3 P.13.1 by Norman S. Jaffe and Joseph Horwitz.
Post operative endophalmitis is one of the most serious complication of cataract surgery aside from a tragic result for the patient in many cases. It is frustrating for the surgeon because it usually conscious after flawless cataract surgery.
The fact that post operative endophtalmitis is a deadly complication is also accepted in:
(1) Clinical ophthalmology 3rd Edn., by Kanski P-299-300 Acute endophthalmitis is a devastating complication that occurs in about 1 in 1000 cases. Dispute early treatment, about 50% of the yes become blind
(ii) Opthalmology, August 192, Vol 89 P 921 published by American Academy of Opthalmology-Infectious Endopthalmitis-Review of 36 cases by Dr. Carmen A. Puliafito MD & Ors.
Endopththalmitis is one of the estastrophic complications of ocular surgery, penetrating ocular trauma, and systemic infection:
Journal of Cataract and Refractive Surgery, Vo. 24, June 1998 Preventing diagnosing and treating endopthalmitis P 725 Postoperative bacterial infection remain one of the most potentially serious conditions that can occur after routine and otherwise uncomplicated ocular surgery The fortunately rare occurrence of bacterial endophthalmitis after cataract surgery, presently estimated between 5 and 10 cases per 10,000 British Journal of Opthalmology-1984, Vol. 68, P.50-Bacterial contamination of intraocular lens surgery-by Dr. Gillian C. Vafidis & Ors.
Post operative infection is one of the most treated complication of intraocular lens implantation and postoperative inflammation is an even which still eludes satisfactory explanation About source of infection, following observations are made in various medical books / journals:
1. In most cases the source of infecting organisms cannot be identified with certainty
2. Endophthalmitis most often occurs after surgery lent may develop from penetrating ocular trauma or local and systemic infection.
Additional risk factors and features influencing outcome are largely unknown.
11. On the strength of the above medical opinions, Mr. Sil. Counsel for OP No.1 emphatically argued that since the source of the infecting organism cannot be identified with certainty and it could be due to the patients own external bacterial flora of the eyelids, conjunctiva and drainage passage, the possibility of complainant having suffered this infection due to the above factors is most likely rather than that any act of omission or commission on the part of the OP No.1 or for that reason any defect in the operation theater or instruments. In any case his submission is that possibility of the complainant having caught such an infection at his house where he stayed after his discharge due to the atmosphere prevailing there cannot be ruled out. The contention cannot be brushed aside in absence of any cogent evidence having been brought on record to show that the said bacterial infection and the resultant complication was suffered by the complainant due to certain unsanitized condition at the nursing home or unsterilized instrument having been used for conducting the said procedure. If the source of such bacterial infection could be several which has not been pin pointed, it would be wholly unjust to fix the responsibility of OP No.1 for the same on the basis of presumption that it must be on account of certain unsanitized condition or use of unsterilized instrument used at the time of conducting the procedure, least on account of any procedural failure / neglect on the part of OP. No.1.
12. The other submission made on behalf of OP No.1 is that despite the advise of OP No.1 to the complainant to undergo emergent vitrectomy procedure without any loss of time, the said procedure was conducted by Sankara Nethralaya after inordinate delay on 23.10.96. We may not comment on this aspect because neither Sankara Nethralaya was arrayed as one of the parties to the complaint nor any allegation of medical negligence or deficiency in service has been made in the complaint against Sankara Nethralaya However, we may simply note that it as a fact that despite the appellant undergoing two successive vitrectomy procedures, one on 23.10.96 and other on 06.11.96, the right eye of the appellant could not be saved. Sankara Nethralaya has not been given any opinion that either the procedure conducted by OP No.1 was faulty or the complication of Endoopthalmitis was on account of any deficiency in service on the part of OP No.2.
13. Thus on a consideration of the submissions put forth on behalf of the parties and keeping in view the law as laid down by the Apex Court on the subject, we are of the considered opinion that the State Commission was fully justified in recording the finding that the complainant has not been able to establish any medical negligence or deficiency in service on the part of the opposite parties. The said finding is based on correct and proper appreciation of the evidence and material brought on record and is also in consonance with the settled legal position. We endorse the findings of the State Commission and see no infirmity in the said finding and order of the State Commission is dismissing the complaint.
14. It is unfortunate that the appellant has been rendered almost a visually impaired person in one eye and the vision in his other eye has also been affected. But except expressing our heartful sympathy, we are unable to provide any succour to the appellant because it has not been established on record that the eye of the complainant contacted infection of pseudomonas aeruginosa on account of either any negligence committed by opposite party no.1- Opthalmic Surgeon or any deficiency in service on the part of OP No.2-Nursing Home. Having considered the matter in its entirety, we are of the considered opinion that the finding and order recorded by the State Commission dismissing the complaint are based on correct and proper appreciation of the evidence and material produced on record and is also in consonance with the settled legal proposition. The same cannot be faulted.
15. In the result, the appeal fails and is hereby dismissed. However, in the peculiar circumstances, parties to bear their costs throughout.
.Sd/-J (R.C. JAIN) ( PRESIDING MEMBER) ..Sd/-
(ANUPAM DASGUPTA) MEMBER Am/