State Consumer Disputes Redressal Commission
Shri Balkrishna Mahadev Kare, vs Shri Dr. P.N. Nagpal & Ant. on 21 October, 2009
BEFORE THE HON
BEFORE THE HONBLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT
NO.220/1995 Date of filing: 20/12/1995
Date of
order: 21/10/2009
Shri Balkrishna Mahadev
Kare,
New Gharondha Soc.,
Plot No. RM-48,
G-Block, MIDC,
Chinchwad,
Pune 411 019.
..... Complainant
V/s.
1.
2.
Shri Dr. P.N. Nagpal,
Aso-Palov Eye Hospital,
Near Underbridge,
Rajbhavan Road,
Shahibag, Ahmedabad
380 004.
K.E.M. Hospital,
Sardar Mudliyar Road,
Rastha Peth,
Pune 411 011.
...... Opposite
Parties
Corum:
Shri P. N. Kashalkar, Honble Presiding Judicial Member.
Smt. S.P. Lale, Honble Member.
Present:
Mr. U.B. Wavikar, Advocate for Complainant.
Mr. Chetan Patil, Advocate I/b Mr. Amit Karkhanis, Advocate for Opposite Party No.1 Mr. Rabindra Hazari, Advocate for Opposite Party No.2.
-: ORDER :-
Per Shri P. N. Kashalkar, Honble Presiding Judicial Member.(1)
Complainant Shri Balkrishna Mahadev Kare, a resident of Chinchwad, Pune, filed this consumer complaint against the Opposite Party No.1 Dr. P.N. Nagpal of Ahmedabad and also against K.E.M. Hospital, Rastha Peth, Pune Opposite Party No.2, alleging negligence in the services rendered by both the Opposite Parties.(2)
He pleaded that, he received one letter from Dr. P.N. Nagpal on 06.05.1995 and acting upon the said letter and other annexures he was approaching this Commission for redressal of his grievances. He mentioned in Para No.2 of the complaint that from the facts and circumstances as disclosed in the synopsis and list of dates, it is clear that he had taken all the treatment, had undergone of the operations, took medicines prescribed as per advice of doctors and committed no mistake in taking treatment and in spite of the treatment his right eye is lost due to improper treatment and negligence of the Doctors. They recovered lot of money from him for giving services like treatment and operations, but while giving services they were negligent. He listed his grievance as under:
(i) ATT treatment started by Dr. Sarpotdar of KEM Hospital without giving any pre-intimation about its reaction/side effects of loss of eye in the future.
(Dr. PN Nagpal stated in his letter dated nil received on 6/5/95 attached herewith as Annex A-28)
(ii) Stitching of Retina was not done properly at the time of first operation i.e. on 27.11.1993.
(As stated by KEM AS PER Annex A-19)
(iii) Silicon Oil used at the time of second operation for fixing of Retina is of low standard or having fungus so that it is reacted badly.
(As per Dr. Nagpals letter he has tested silicon oil from a Lab this means that he knows that he has used a silicon oil which is not of standard or might be it is having fungus so that he has taken a report of lab to safeguard his side)
- or -
(iii) Silicon Oil is used without any test for reaction.
(iv) Silicon oil is removed within 3 days due to which retina fall down immediately.
(v) Stitches were removed after 6-7 months after the second operation.
(vi) Dr. Nagpal relived/discharged me from his hospital with swelling on my right eye, headach and pus is being developed.
(Please refer Annex A-24 I have immediately admitted in KEM Hospital after reaching at Pune Rly station on 25/1/94, due to headach etc.)
(vii) Proper idea/advice not given before each treatment and before each operation.
are the instances of negligence in the services rendered by both the Opposite Parties.
(3)He further relied upon Dr. Nagpals letter dated 06.05.1995 to plead that, that letter by Dr. Nagpal offered for giving free services for his left eye which was itself a proof of his negligence in performing the operations. He pleaded that due to negligence he lost his right eye and by his right eye he was unable to do any work on any machine which was part of his job and therefore, he could not get promotions or he may lose job though he is ITI (machinist trade holder). He has therefore prayed that he should be awarded damages of Rs.9,30,000/- as particularised in prayer clause. In the synopsis which is appended to the complaint he has mentioned that he has passed ITI Machinist in July, 1986 and he got in 1987 Central Government job in the workshop of R & DE (E), since then he has been working on machines like lathe machine, grinding machine, drilling machine etc. On 29.05.1992, a particle of dust went in the right eye while working on the grinding machine. He went to the dispensary of his establishment and got removed dust particle. Doctor advised him to approach eye specialist within 2/3 days. Hence, on 01.06.1992 he went to KEM Hospital OPD where Dr. Deshmukh attended him and prescribed 10 days medicines. On that day vision of his both eyes was, 6/9 of left eye and 6/9 of left eye. On 06.06.1992 he went to KEM Hospital because there was pain in the right eye, Dr. Deshmukh referred him to Dr. Mrs. N.S. Sarpotdar, Dr. Sarpotdar checked his vision and asked him to come on 13.06.1992 for recheck-up and for some tests. On 13.06.1992 certain tests were carried out and his vision was 6/6 of left eye and 6/12 of right eye. On 08.07.1992, he again approached KEM Hospital because there was bleeding from the right eye. They asked him to take rest for one month. He took rest accordingly. From 20.06.1992, KEM hospital started laser treatment. There were 11 sittings for laser treatment, each costing Rs.500/- per sitting. He paid total amount of Rs.5,500/- for laser treatment. On 24.08.1992, KEM hospital issued fitness certificate, because his vision of both the eyes was 6/6. On 03.10.1992 Dr. Sarpotdar referred him to Dr. S. Natarajan a Vitreo Retinal Surgeon, who advised him periodic check-up. On 05.12.1992 he was referred to chest department by Dr. Sarpotdar. Dr. Kale at Chest OPD carried out some tests, in which tuberculin test came positive. After taking expert opinion from Dr. Kale, Dr. Sarpotdar started ATT treatment for 30 days. On 31.07.1993 Dr. Sarpotdar gave treatment of Laser Photocoagulation at KEM hospital and referred him to Dr. P.N. Nagpal. Dr. P. N. Nagpal visited KEM hospital on 05.09.1993 and checked his right eye. Dr. Sarpotdar, on 11.09.1993 referred him to Dr. P.N. Nagpal at Aso-Palov Eye Hospital, Ahmedabad and KEM Hospital issued him certificate that Vitrio Retinal Surgery would cost Rs.10,000/- at Ahmedabad. He then went to Ahmedabad on 26.11.1993, met Dr. Nagpal, paid Rs.300/- as consultation fees where Dr. Nagpal carried out some tests and assured him that he would make one surgery at right eye and thus, his vision would become alright. On 27.11.1993, Dr. Nagpal carried out operation on his right eye for two hours. On 30.11.1993 he was discharged with a direction to take out bandage at KEM Hospital at Pune. For operation he paid Rs.7,232/- to Dr. Nagpal. His vision after first operation was 6/36, which was good sign. On 25.12.1993, he again visited Dr. Nagpal at Ahmedabad for recheck-up. His vision of right eye was 6/36 and vision of left eye was 6/12. On 11.01.1994 he got a problem of lower vision and swelling, so he went to KEM Hospital for checking. They told him after checking that his retina was detached because of improper stitching while operation and re-operation was required. On 12.01.1994, KEM Hospital issued certificate that re-operation by Dr. Nagpal at Ahmedabad would cost Rs.8,000/-. On 15.01.1994 he went to Ahmedabd, met Dr. P. N. Nagpal, who on checking told him that his retina was detached because of improper stitching at the time of first operation. He assured that his eye would be alright after re-operation. His re-operation was done by Dr. P.N. Nagpal, charging him Rs.3,000/- for operation. On 18.01.1994 after re-operation he was having headache and swelling on right eye. Dr. Nagpal took him to operation theatre, removed the bandage, removed silicon oil from his operated eye. When asked Dr. Nagpal, he told him that his eye was not accepting silicon oil, a silicon oil put in the eye may be having some problem so he removed the same. Normally silicon oil is removed after setting of retina, Doctor added. Dr. P. N. Nagpal on 24.01.1994 discharged him from his hospital though even at that time he was suffering from headache. He assured that after some days the headache would go away and he would be alright. He handed over to him a note written to Dr. Sarpotdar for further treatment. While returning to Pune from Ahmedabad his headache became intolerable, so after getting down from the train he immediately went to KEM hospital and met Dr. Sarpotdar who checked his eyes and told him that pus was developed in his eye and it was due to infection of silicon oil which was used for fixing retina. Dr. Sarpotdar told him that due to swelling and pus there was chance of loss of eye. He was admitted in KEM Hospital on the same day and after some tests finally he was discharged from the hospital on 02.02.1994. On that day, Dr. Sarpotdar told him that he would lose the eye though they tried their best to save it. On 16.07.1994, Dr. Sarpotdar issued clinical note in which it is categorically mentioned that his right eye is lost due to Eales disease and due to surgery.
(4)On 22.07.1994, he when approached Dr. P.N. Nagpal for check-up, he removed stitches and told him that his eye was lost. Since there was a total retinal detachment in the right eye which was followed by MV & Silicon oil injection and eye had become physical. On 17.04.1995 he wrote letter to Dr. Nagpal in which he had demanded some compensation for negligence while doing first and second operation on him. On 10.05.1995, Dr. Nagpal wrote him letter in which he stated that his eye was lost due to ATT treatment given at KEM hospital and that he would do necessary treatment on his left eye free of cost. On 06.06.1995 he again wrote letter to Dr. Nagpal, sending copy to KEM Hospital and demanded certain compensation and since no compensation given, it appears that Complainant has filed this complaint.
(5)Opposite Party No.1 Dr. Nagpal filed Written statement and pleaded that complaint filed by the Complainant is not with respect to any deficiency in service or unfair trade practice adopted by him, but, it has been filed to tarnish his clean image and to bring disrepute to his good name and standing. There is no element of any negligence in the services rendered by him to the Complainant and therefore, complaint should be dismissed. He pleaded that complaint has been filed just to extract monetary consideration from a sincere and a caring Surgeon like him and to harass him and therefore, it should be dismissed in limine. He also pleaded that Consumer Forum is not competent to decide medical negligence cases in its summary jurisdiction. The issues involved in this complaint require correct, precise and elaborate medical, factual and technical evidence, so Civil Court only can adjudicate the complaint satisfactorily, where evidence is adduced. On this ground itself complaint should be dismissed. He also pleaded that the Complainant has not disclosed true facts in his case, because both the eyes were affected. It was a case of chronic disease of tuberculosis with a reactive inflammation. His both the eyes were affected. His mantoux test was positive and he was on anti-Kochs for some time. He suffered infection in the right eye because he was suffering from tuberculosis which is called Eales disease. His left eye was also suffering from tuberculosis. In such disease, eye does not give response to any procedure properly. It is due to tuberculosis which decreases immune mechanism that Complainant demonstrated poor tolerance to the silicon oil, which had to be removed. Hence, according to Opposite Party No.1 it was tuberculosis factor which was responsible not only for Eales disease, but also for poor tolerance to surgery. Opposite Party No.1 further pleaded that Complainant was resorting to falsehood and he is alleging negligence against operating doctors, but truth is that due to poor tolerance to the silicon oil and due to Eales disease despite right eye operation the patient could not get full recovery because of poor tolerance. The Complainant was suffering from tuberculosis which caused flare-up reaction due to low immune status. Doctor pleaded that during vitrectomy done on 27th November, 1993 there was no attention paid to the Retina. Only peeling of the membrane was done during this procedure which was appropriate procedure. So, he is not deficient in service and therefore, he pleaded that complaint should be dismissed. He further pleaded that complaint filed is totally frivolous and should be dismissed with compensatory costs awardable u/sec. 26 of the Consumer Protection Act. He pleaded that Complainant was suffering from tuberculosis and Eales diseases. Visual loss is characteristically caused by bilateral recurrent vitreous haemorrhages. Eales disease is wide spread in India. Neovascularisation is observed in up to 80% of patients with Eales disease. Occasionally patients have extensive retinal and vitreal proliferation of relatively avascular interlocking stands and sheets of fibrous scar tissue. The eyes have associated anterio posterior vitreo retinal traction and are at risk of developing retinal detachment. He further pleaded that there is clear-cut relationship between Eales disease and tuberculosis. It is said that the immune responses to tuberculin protein may play a role in the pathogenis of Eales disease. The association of Eales disease with both occular inflammation and hyper insensitivity to tuberculin protein suggests that this disease may be associated with immunologic phenomena. Opposite Party No.1 pleaded that tuberculosis is a chronic bacterial infection caused by Mycobacterium tuberculosis. The usual site of the disease is lung, but other organs may be involved. In the absence of effective treatment for active disease, a chronic wasting of course is usual and death ultimately supervenes. Tuberculin hypersensitivity is anti-specific in nature and follows primary infection. It is chiefly or entirely directed against protein antigens. Tuberculosis is a systemic disease wherein there is decreased immunity. This leads to decreased resistance on the part of the person affected to any pathology/procedure. Dr. pleaded that silicon oils are made of siloxane. The silicon oils are processed by filtering, sterlisation, purification and fractionation. After the sterlisation, the silicon oil is transferred in commercially available prepack syringes. No test is available to pretest silicon oil before its use. So, he committed no error in putting silicon oil from the prepack syringes available in the market. Silicon oil is used because it assists in maintaining retinal attachment by a combination of effects including tamponade of retinal breaks, flotation force and its hydraulic space-occupying property. For this purpose silicon oil is used in retinal detachment cases. silicon oil is removed after several months once the retina is reattached. Doctor pleaded that, in his hospital the protocols are followed to control infection by adhering to the guidelines issued by Hospital Infection Society, Mumbai Forum.
(6)Doctor further pleaded that Complainant has failed to prove negligence against him. Doctor had taken due and reasonable care and committed no error in operating the Complainant in his right eye. No negligence or rashness has been proved against him. He had taken all the care that was expected from any reasonable prudent medical practitioner and there was no negligence or rashness in the services rendered by him to the Complainant. He pleaded that he cannot be held guilty of negligence or rashness because he had made all the necessary investigations required to be made. When patient was referred for Eales disease, right procedure was adopted and it was a standard procedure. Vision of the patient had improved to 6/36 after vitrectomy. When patient returned after few months with detachment appropriate measures were instituted. He further claimed that he had not faulted treatment protocol in treating the Complainant. When patient approached him with right vitreous hemorrhage, manual vitrectomy was done with endo lazer with peeling of membranes and vision improved to 6/36. When patient came with right retinal detachment on 15.01.1994, silicon oil was inserted and on 18.01.1994 when it was noticed that there was reaction to the silicon oil, it was instantaneously removed. Intra vitreal garamycin and dexa was given all through the post operative period.
(7)According to Opposite Party No.1, it is the choice of the surgeon or expert to decide which sort of method or protocol should be employed for treating a particular ailment. Doctor cannot be faulted for making the choice. He further pleaded that every treatment has its own complications despite taking of care and caution. That does not mean that in treatment or in operation there is any negligence on the part of the Doctor. In spite of taking of care and caution the outcome and the response may be otherwise, that would not mean that treating Doctor is negligent. Opposite Party No.1 asserted that he exercised due care and caution and exhibited skill and diligence all throughout the management of the patient. Opposite Party further pleaded that Complainant has not discharged its burden to prove negligence and deficiency in service on the part of the Opposite Party No.1. He is simply making bald allegations against medical practitioner who followed the treatment protocol as mentioned in textbook. Opposite Party further pleaded that the Complainant has not adduced any expert evidence, whereas from the letter of Dr. Namperumalsamy it would be clear that he followed right protocol in treating the Complainant. The Opposite Party No.1 further pleaded that Eales disease was the real cause for retinal detachment for which cryo with laser and silicon oil insertion and encirclage was done, but, since Complainant was suffering from tuberculosis there was a flare-up due to low immune status leading to low tolerance to the silicone oil which had to be removed and which was promptly removed. Opposite Party No.1 pleaded that he had been most sympathetic and humane in his approach while dealing with the Complainant. He had informed Complainant the protocol he followed, the treatment he had given and the line of management and investigation he had chosen. He had monitored the patient when he was under treatment and Opposite Party No.1 had used skill, care, caution and diligence in the management of the patient. He pleaded that the service rendered by him was not substandard or below par, though the end result may not be satisfaction of the patient. He asserted that he exhibited high degree of care and caution. He pleaded that patients always do not respond to the medical management and since there are many diseases where medical professional is helpless. He stated that, in such cases, in spite of possible care and treatment patient may respond otherwise. He also prayed that complaint should be dismissed with costs and in fact damages should be awarded to him for having been dragged to this Commission by the Complainant without some reasons.
(8)Opposite Party No.2 KEM Hospital, has filed Written statement and pleaded that Complainant does not disclose any cause of action against Opposite party No.2 for claiming compensation and therefore, it should be dismissed. Opposite Party No.2 further pleaded that synopsis presented by the Complainant in letter Exhibit-A-28, relied upon by the Complainant does not make out any ground for granting any relief in favour of Complainant as prayed for. The Opposite party No.2 categorically denied allegations made by the Complainant. Doctors working in KEM Hospital had not been negligent in any manner in giving treatment to the Complainant. Opposite party No.2 pleaded that treatment given to the Complainant in KEM Hospital was proper. Dr. Mrs. N.A. Sarpotdar (M.S.), Hon. Consulting Surgeon in Ophthalmogy, after carrying out necessary investigation, she found that Complainant was suffering from Eales disease and was having repeated vitreous hemorrhages in both eyes. She therefore referred the Complainant to Dr. S. Natrajan, Vitreo Retinal Surgeon, Mumbai, who advised the Complainant to have periodical follow up. The Complainant did not follow the advice of Dr. S. Natarajan. He again saw Dr. Sarpotdar at KEM Hospital and complained of diminished vision. As tuberculosis was one of the causes of Ealse disease in India, Dr. Sarpotdar thought it fit to refer the Complainant for an expert opinion for treatment for infection of tuberculosis. So, Complainant was referred to Dr. Madhav Kale on 05.12.1992, who advised that anti-tuberculosis treatment should be given to the Complainant for one month. Accordingly for one month the said treatment was given, but, as Complainant did not show desire results or expected improvements, Dr. Sarpotdar carried out ultra sonography of the eyes of Complainant on 27.02.1993 which showed vitreous haemorrhage in his right eye, but, no retinal detachment. Complainant was advised by Dr. Sarpotdar to have periodical follow-up. Further, till July, 1993, Complainant did not turn up. On 31.07.1993, he again came to meet Dr. Sarpotdar and complained of diminished vision. She therefore, referred him to Dr. P.N. Nagpal, Retina Specialist, Ahmedabad for vitrectomy and endo laser treatment. Complainant went to Ahmedabad, met Opposite Party No.1 Dr. P.N. Nagpal, got his right eye operated at Ahmedabad and thereafter, Complainant saw Dr. Sarpotdar on 11.01.1994 and complained sudden loss of vision in his right eye. On examination, Dr. Sarpotdar found that he had retinal detachment in his right eye. She therefore directed Complainant to approach Dr. Nagpal again for necessary treatment. Then, Complainant went to Ahmedabad on 12.01.1994, where Dr. Nagpal again operated his right eye for retinal detachment. Again on 25.01.1994 he approached Dr. Sarpotdar at KEM Hospital, Pune and complained that his vision had not improved and there was severe pain in his right eye. Dr. Sarpotdar found that, he developed pus in his right eye. He was therefore immediately admitted in KEM Hospital, Pune, and was given necessary treatment. She, however, found that Complainants eye was beyond recovery and discharged him on 02.02.1994. The KEM Hospital pleaded that, they had given proper treatment for the ailment he was suffering from. He was referred to various experts when needed. He was even referred to Dr. P. N. Nagpal at Ahmedabad, who had conducted two operations on the right eye of the Complainant. He was given tuberculosis treatment at the instance of Dr. Madhav Kale, since he was suffering from Eales disease. So, there was no deficiency in service of any kind on the part of the KEM Hospital and therefore, hospital pleaded that the complaint should be dismissed with costs.
(9)Heard Mr. U.B. Wavikar, Advocate for Complainant, Mr. Chetan Patil, Advocate instructed by Mr. Amit Karkhanis, Advocate for Opposite Party No.1 and Mr. R. Hajari, Advocate for Opposite Party.
(10)Following issues arise for our consideration:
(i) Whether Opposite Party No.1 proves that Forum has no jurisdiction to entertain the complaint which is complicated in nature and required oral evidence and cross examination of witnesses?
:
No.
(ii) Whether Opposite Party No.1 proves that Complainant suppressed material facts and hence, he is not entitled to get relief claimed and he has not come in this Commission with clean hands?
:
No.
(iii) Whether the Complainant proves that Opposite Party Nos. 1 and 2 were guilty of medical negligence and deficiency in services in giving treatment to him?
:
No.
(iv) What order, if any?
Complaint stands dismissed R E A S O N S:
Issue No.(i):
In the written submissions it has been mentioned by the Opposite Party No.1 that this complaint involves complicated nature of facts and circumstances requiring recording of evidence and cross-examination and this Commission having summary powers to decide cases on Affidavits should not entertain this complaint involving alleged medical negligence and therefore, this complaint should be referred to Civil Court where evidence can be adduced and parties can cross-examine the witnesses. However, we are not convinced with the arguments advanced by Counsel for Opposite Party No.1. Medical negligence cases are being decided day in and day out in the Consumer Forums all over India. If there is need of recording evidence, we are appointing Commissioners to record evidence or we are asking parties interested to cross-examine any expert by delivering interrogatories to him and we are seeking his responses on the interrogatories. In this way, factual material can be brought on record in favour of or against the party in the given cases. So, despite the fact that we have got summary procedure, the proper steps are being taken to ensure that justice is done to both the parties and ample opportunities are being given to both the parties to present their case, present their affidavits, examine expert witnesses on Affidavits and cross-examine the witnesses or experts by delivering interrogatories. In this way fair trial is being assured to both the parties. There are number of rulings of the Honble National Consumer Disputes Redressal Commission and the Honble Supreme Court to the effect that Consumer Forums can obtain experts opinion to decide medical negligence cases. Thus objection taken by Opposite Party No.1 to the entertainment of this complaint is appearing to devoid of any substance and it is liable to be rejected. We, therefore, record our findings of Issue No (i) is in the negative.
Issue No.(ii):
It was the contention of Opposite Party No.1 in the written statement and the arguments before us that Complainant had not come with clean hands and that he suppressed material facts to suit his purpose of extracting monies from Opposite Party Nos. 1 and 2. Now, what is pertinent to note is the fact that Complainant is a layman who has filed consumer complaint in person. When layman is filing consumer complaint some latitude has to be given to him. He is not well-versed in the art of drafting complaints and pleadings. So, if some falsity has crept in his pleadings in drafting the complaint it will have to be excused. So, objection should not be taken to the fact that Complainant has filed consumer complaint making some false statement or he suppressed any material facts in the complaint. We have already mentioned above that complaint was drafted and filed in person by the Complainant. So, some sort of latitude is required to be given to him. Some false statement here and there, even if found in the complaint would not mean that complaint is absolutely false and should be dismissed on that ground alone. Thus we find that there is no merit in the objection taken by Opposite Party No.1 in this behalf. We, therefore, record our finding in respect of Issue No.2 in the negative.
Issue No.3.
At the outset, it must be placed on record that Complainant has not adduced any expert evidence in terms of Affidavit of Expert. He filed consumer complaint basically relying upon one letter written by Opposite Party No.1 to him. It is marked at Annesxure-28. Annexure-28 is the letter signed by Dr. P.N. Nagpal in response to the letter sent by Complainant to him dated 15th April, 1995.
In this letter, Opposite Party No.1 Dr. Nagpal, has explained the circumstance under which he had examined the Complainant under which he had operated the patient on 27.11.1993. He has also explained why second surgical operation was required to drain out silicon oil which was not found helpful to the right eye because of the fact that his immunity system was decreased since he was suffering from Eales disease. He had also explained to the Complainant how silicon oil was not found suitable and how inflammation in the right eye was flaring-up despite putting silicon oil in his right eye. He had also told Complainant that all Doctors tried their best to fight with the disease of patient, but, no guarantee is given or can be given. This letter is the only piece of the evidence Complainant is relying upon in filing the complaint, in which Doctor has stated that they had tried to rectify the problems of his right eye he was suffering from, but, because of Eales disease and anti-tuberculosis treatment taken even after putting silicon oil in the right eye, they could not get desired effect and therefore, Doctor found it fit to drain out silicon oil by subsequent operation.
The Complainant is a layman and he is relying on Annexure-28, a letter written by Dr. Nagpal. That letter is not the proof of Dr. Nagpal and Dr. Sarpotdar of KEM Hospital, being guilty of negligence. They had tried to solve the problem of the Complainant to best of their capacity. They had used their expertise to give relief to the Complainant. When Dr. Sarpotdar noticed that the usual treatment was not answering, she referred the patient to Dr. Madhav Kale, chest Specialist. At the suggestion of Chest Specialist Dr. Kale, Dr. Sarptotdar Opposite Party No.2 gave to the Complainant anti-tuberculosis treatment, since Complainants right eye was suffering from Eales disease.
Two operations were performed by Dr. Nagpal at his Hospital. In first operation Dr. Nagpal carried out operation Type BMV+EL+ Peeling of the membrane. Thereafter his right eye was bandaged. Dr. Nagpal advised him to take out bandage at KEM Hospital. In KEM Hospital bandage was removed and his vision after first operation was 6/36 which was a good sign. According to Complainant it was proved from Annexure Nos. A16 and A17, then he had taken certain follow-up treatment at KEM Hospital Opposite Party No.2. It was noticed on 11.01.1994 that his retina was detached because of improper stitching while undergoing operation and therefore, reoperation was required. He therefore approached Dr. P.N. Nagpal on 14.01.1994. On 15.01.1994, Dr. Nagpal performed second operation on his right eye, which is clear from Annexure-21. It was operation of V-Major (R) Cryo + needle dissection of membrane + 4CC Silicon oil Injection + Silicone exardage. In Annexure A-22, Diagnosis was (R) Eales Disease Recurrent vitreous haemorrhage. On 17.01.1994, Dr. Nagpal checked Complainant in his operation theatre because of lot of pain and swelling on right eye. He advised silicon oil removal. On 18.01.1994, Doctor took him to operation theatre and after removal of bandage he removed silicon oil from his eye. Consequently, silicon oil was removed after stitching of retina. On 25.01.1994, Dr. Sarpotdar of KEM Hospital found that there was swelling and pus in his right eye and pus had developed in his right eye. It was due to infection of silicon oil which was used for fixing of retina.
According to Dr. Nagpal, silicon oil is used worldwide in the cases of retina detachment. Silicon oil comes in commercially produced syringes. One such syringe was produced before us at the time of arguments. Doctor again checked in the laboratory the effectiveness of the syringe containing silicon oil. Since, it is available in the packed syringes it is to be used as it is and it was found that because of Eales disease the immunity system of the Complainant had decreased and silicon oil put in the right eye by Dr. Nagpal was found to be intolerable to the eye and therefore, the silicon oil was tried to be removed by second operation by Dr. Nagpal. Follow-up action was also advised to be taken at KEM Hospital. So, basically Dr. Nagpal was treating Complainants right eye, he conducted two operations on the right eye of the Complainant and follow-up action was taken as directed by Dr. Nagpal, in KEM Hospital. Dr. Sarpotdar had noticed pus and swelling in the right eye on 25.01.1994, where she told Complainant that there was a chance of loss of eye. The Complainant was discharged from KEM Hospital on 02.02.1994. The KEM Hospital opined that silicon oil was infected and the said eye developed several intolerances and oil was ultimately removed and since then there was certain loss of vision, severe pain and swelling in the right eye and several headache. The Complainant had approached Dr. Kankaria of Ahmednagar, who had examined told him that there was right eye loss due to silicon oil and RD surgery. But, what is pertinent to note is the fact that Complainant has not adduced any expert evidence to pinpoint who had failed, whether KEM Hospital or Dr. Nagpal. In the absence of any evidence of expert highlighting the medical negligence on the part of either Dr. P. N. Nagpal or Doctors of KEM Hospital, we cannot give verdict in favour of the Complainant that Complainant lost his eye because of medical negligence exhibited by Opposite Party No.2 Dr. Nagpal or Opposite Party No.1 K.E.M. Hospital. We agree with the submissions of Dr. Nagpal that, basically, Complainant was suffering from tuberculosis, he had taken anti-tuberculosis treatment at KEM Hospital and during operation for retinal detachment done on 15.01.1994 silicon oil was injected in the right eye and the said right eye had become pathetical. This was due to Eales disease, Complainant was suffering from. It is because of this disease that silicon oil inserted in the right eye by Dr. Nagpal for plugging retinal detachment of his right eye was not proving to be helpful protocol and as such Dr. Nagpal decided to drain out silicon oil from the right eye for which surgery was performed. So everything happened to the Complainant because of Eales disease for which no blame can lie either on Opposite Party No.1 or Opposite Party No.2. Complainant has mentioned that after giving anti-tuberculosis treatment by Dr. Sarpotdar, ultimately he lost his right eye, he also leveled allegations that silicon oil used in the second operation for fixing of retina was of low standard and having fungus, so that it reacted badly or silicon oil was used without any test or reaction. He also alleged that silicon oil was removed within three days due to which retina fell down immediately and these are the circumstances Complainant is relying upon to hold that Opposite Parties are guilty of medical negligence. We are afraid that no such conclusion can be jumped upon by the allegations/questions as raised by the Complainant in his note. The Complainant suffered in his right eye because he was suffering from Eales disease, because of Eales disease his body immunity system had decreased considerably. For retinal detachment silicon oil was used by Dr. Nagpal, but it was found that because of low immunity the said oil was not effective. It was having bad reaction on the right eye of the Complainant and ultimately therefore, as an expert who was keeping good monitoring on the developments of the Complainants right eye, after three days he performed second operation to withdraw silicon oil from the right eye. So, everything was done by Dr. Nagpal at Ahmedabad or by Doctors of KEM Hospital, Pune, in the interest of Complainants eye. The fact that, in the process Complainants eye caught infection and he lost his eye, is an unfortunate thing. But, in the absence of expert evidence, it is not possible for us to draw guarded conclusion that in treating or operating Complainant, Opposite Party No.1 Dr. Nagpal or Opposite Party No.2 KEM Hospital Doctors had exhibited medical negligence or deficiency in service of any kind. We are not at all convinced that they had shown any sort of negligence in treating Complainant. They were diligently following up Complainant and every precaution was taken by them to arrest his ailment. However, it is unfortunate that they could not succeed ultimately to improve the right eye of the Complainant.
In medical negligence cases two things must be established, whether particular protocol or procedure followed by Doctors of KEM Hospital was established one or followed elsewhere in other hospital. If that is so, even if something goes wrong in the treatment the Doctors cannot be held liable for medical negligence. Secondly, we have to see that in such cases whether Doctor had taken due, proper and reasonable care which any Doctor of his standard would have taken in the circumstances obtainable. We are finding that the treatment given, operation undertaken in respect of the Complainant was established procedure adopted by Dr. Nagpal and Doctors of KEM Hospital, no fault can be found in their line of treatment. For right eye ailment they had followed the right procedure for retinal detachment by performing operation for putting silicon oil in the right eye and when Dr. Nagpal found that the silicon oil was appearing to be intolerable to the right eye by operation, he tried to drain out silicon oil from the right eye. So, he had used his expertise and skill in the proper direction by following right procedure and protocol. KEM Hospital too, on their part had taken good amount of care in taking follow-up action on the right eye of the Complainant and as such we are of the view that neither of them can be held guilty of deficiency in service or negligence of any kind as alleged by the Complainant. Like Complainant, we are also layman and we must be explained by proof at what point of time either of the Doctors faulted or Doctors of KEM Hospital exhibited deficiencies in the treatment of Complainant. No such evidence has been adduced by the Complainant in this case and therefore, disagreeing with the Complainants contention, we hold that both the Opposite Parties are not guilty of deficiency in service or medical negligence as averred by Complainant. We are, therefore, recording our finding on Issue No.3 in the negative.
(12)In view of the discussion made above, we are finding that there is no merit in the case of medical negligence filed by the Complainant against the Opposite Party Nos. 1 and 2, as such complaint will have to be dismissed. Hence, we pass the following order:
O R D E R
(i) Complaint stands dismissed.
(ii) No order as to costs.
(iii) Inform the parties accordingly by sending copies of judgment free of costs at their addresses.
(S. P. Lale) (P.N. Kashalkar) Member Presiding Judicial Member ep