National Consumer Disputes Redressal
Tarun Thakore vs Dr. Noshir M. Shroff on 24 September, 2002
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 215 OF 2000 Tarun Thakore 269, Daya Nand Vihar, Delhi .. Complainant Vs. 1. Dr. Noshir M. Shroff 2. Dr. Dariel Mathur 3. Shroff Eye Centre 105, Surya Kiran, 19, Kasturba Gandhi Marg New Delhi .. Opposite parties BEFORE: HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT HONBLE MR. JUSTICE J.K. MEHRA, MEMBER. MRS. RAJYALAKSHMI RAO, MEMBER. Medical negligence - Claim for damages - Operation of both the eyes of Laser surgery (PRK) - central island in right eye - deficiency in service - if Lasik better procedure - Not necessary to consider the intricacies of operation involved in PRK and Lasik methods - Both the methods have merits and demerits - Complainant informed of the procedure of operation and consequences - Held - No negligence. For the Complainant : Dr. Narinder Kumar Khetarpal, Advocate For the opposite parties : Mr. Gaurav Banerjee, Advocate O R D E R
DATED THE 24th September, 2002.
JUSTICE D.P. WADHWA, J.(PRESIDENT).
Complainant has alleged medical negligence against the opposite parties numbering three. A sum of Rs.35.00 lakhs is claimed on that account. Complainant says he got his two eyes operated from the opposite parties as he suffered from myopia (shortsightedness. Not able to see distant objects clearly). It was admitted during course of arguments that there is no complaint about any medical negligence in respect of his left eye. As regards right eye he says that though vision improved but he developed central island* , monocular diplopia (seeing double images of one object when using one eye only) and ghost image/after image (faint duplicate image overlapping the original image of the object one is seeing). Other complaints were that while performing the operation opposite parties did not use the better method which was available i.e. Lasik technology (Lasik*: stands for Laser Assisted in Situ Keratomileusis) and instead used laser technology (PRK* - Photorefractive Keratectomy). Yet another complaint was that the complainant was not told of the consequences that might result from the operation.
As noted above, there are three opposite parties i.e. (i) Dr. Noshir M. Shroff, (ii) Dr. Dariel Mathur and (iii) Shroff Eye Centre. It was Dr. Shroff who performed the operation. Dr. Mathur checked the eyes of the complainant when he visited the Shroff Eye Centre and also gave a report about the operation which report the complainant desired as he wanted to go to United States for further examination of his eyes.
There is otherwise no negligence attributed to Dr. Mathur. Third opposite party is the Shroff Eye Centre where the operation was performed.
________________________________________________________________________ Central island: PRK Surgery involves vaporizing away microscopic layers of corneal tissue to modify the curvature of the lens. In other words, the laser ablates (surgically removes) a position of the cornea. After such an operation the cornea undergoes a process of healing.
Such healing of the cornea can sometimes be irregular. This is a well-known and well-documented side effect and is dependent on various factors. A central island is one such irregularity and may be defined as a well circumscribed, usually central circular or oval area of relatively greater corneal topographic power and created within the region of reduced corneal topographic power created by Excimer laser PRK or LASIK.
Central Island may be caused for various reasons such as regional differences in hydration of the cornea or different rates of healing but is not related to surgical skill. It is well documented in eye surgery literature that central island occur in a small percentage of patients despite the exercise of the highest standards of care and skill in the surgery. Central island occurs more often with broad beam lasers but less with Scanning lasers as used in this case. The incidence is much lower and occurs mostly due to healing and hydration factors mentioned above. Be that as it may, it is well established that corneal irregularities such as central islands do cause associated visual effects such as ghost or double images but are usually resolved without surgical intervention post-operatively within 6 to 12 months. There are independent of whether PRK or LASIK procedure is adopted. They resolve more often on their own after PRK than after LASIK.
It could not be disputed that Dr. Shroff possesses all the qualifications and was a competent eye surgeon to perform the operation.
Nevertheless negligence is attributed to him in respect of the operation performed on the eyes of the complainant. The possibility of a claim for professional negligence by a dissatisfied patient is high which confronts all professional people howsoever well qualified, experienced and competent they may be. But at times negligence may occur giving rise to claim for damages.
At this stage we may note the observations of Lord Justice Donaldson who in the case of Whitehouse v. Jordan [1980] 1 All ER 650 at 666 said:
There are very few professional men who will assert that they have never fallen below the high standards rightly expected of them.
That they have never been negligent.
If they do, it is unlikely that they should be believed. And this is true of lawyers as it is of medical men. If the judges conclusion is right, what distinguishes Mr. Jordan from his professional colleagues is not that on one isolated occasion his skill deserted him, but that damage resulted. Whether or not damage results from a negligent act is almost always a matter of chance and it ill becomes anyone to adopt an attitude of superiority.
Opposite parties have denied all the allegations of alleged negligence attributed to them.
Complainant, a businessman claiming to have turnover of crores of rupees a year, visited Shroff Eye Centre in January, 1997.
He was suffering from extreme ________________________________________________________________________ * In performing LASIK, the surgeon first uses a special oscillating blade to make a partial cut through 1/4th to 1/3rd of the front surface of the cornea, creating a flap of clear tissue on the central part of the eye. The patient is then positioned under the Excimer laser which is programmed to vaporize away some of the internal corneal tissue under the flap. The tissue is removed to reduce curvature and reduce the nearsightedness. After the laser has removed the tissue, the flap is closed over the eye. The cornea has natural bonding qualities that allow effective healing without the use of stitches. In summary, the fundamental difference between LASIC and PRK is that in LASIK Surgery a flap is created.
myopia and anisometropia (difference that could be in spectacle power if worn, between two eyes). Various examinations on his eyes were conducted by the opposite parties. Complainant had claimed that he had never worn glasses although he said he had a power of
-7.00 D in the right eye and
-5.00 D in the left eye.
Examination of his eyes, however, showed that his number was
-11.00 D in the right eye and -5.5 D in the left eye. Opposite parties say that after detailed checking complainant was advised PRK (Photorefractive Keratectomy) Opposite parties say that this process was explained in detail and a standard booklet given to the complainant. Opposite Parties say, and we have no reason not to believe, at that time complainant was advised suitability of PRK surgery and was explained the process and even a booklet containing the detailed procedure relating to PRK surgery was given to him. With this booklet a paper containing possible questions a patient may ask and the answers thereto were also given. Complainant denies all this but he has offered no explanation why it took him one year to make up his mind to go for PRK surgery.
Complainant came back to the opposite parties in January next year. His eyes were again tested and as earlier he was advised laser surgery ( PRK) in both the eyes.
Agreement to Treatment and Consent Forms were signed by the complainant, though he says his brother was made to sign a few papers which he did in good faith. What those papers were we do not know. These ______________________________________________________________________ *PRK is a surgical procedure effective in correcting nearsightedness, farsightedness and astigmatism. After extensive analysis of the eye, an Excimer laser is a programmed to vaporize away microscopic layers of corneal tissue. The Excimer laser is a type of cold laser that does not burn or cut the tissue but breaks the molecular bonds between the cells for controlled amounts of tissue to be vaporized away, one microscopic layer at a time. In patients having myopia (nearsightedness) the Excimer laser is programmed to vaporize away some of the central corneal tissue.
The tissue is removed to reduce curvature and reduce the nearsightedness.
documents clearly point out the risk involved in PRK. Complainant gave his consent for the PRK procedure to be performed on his eyes which consisted of using excimer laser to vaporize tissue from the surface of the cornea of eyes in order to create a new contour. The risk of PRK was explained as under:
Risk of Photorefractive keratectomy These can be divided into two categories:
1.
Vision Threatening Complications: It is possible that there could be a loss of some or all useful vision as a result of the following:
(a) Infection (internal or external) that cannot be controlled by anibiotics or other means.
(b) Irregular healing of the cornea that could result in distorted corneal surface so that distorted vision or ghosting occurs which may not be correctable by spectacles or contact lenses.
(c) A haze* or scar on the cornea that may require retreatment by the Excimer laser. Even after retreatment, the vision may not be correctable by glasses or contact lenses to a level as good as preoperatively.
2. Non Vision Threatening Complications: Everyone experiences at least some of the following:
(a) Nearsightedness (for those who were farsighted initially), this may become permanent and may require the use of spectacles, especially for distance vision.
(b) Farsightedness (for those who were nearsighted initially), this may become permanent and may require the use of spectacles, especially for near vision.
(c) Unpredictable healing response. This may require future surgical enhancement. If doctor feels any further enhancement may be unwise, spectacle or contact lenses may be required.
_____________________________________________________________________ *Haze: Decreased transparency of the cornea
(d) Contact lens intolerance. While many people who successfully wore contact lenses before surgery can do so after, there is a possibility that the eye may not tolerate contact lenses comfortably.
(e) Increased sensitivity to light and decreased vision in artificial or dim light. I understand that conditions such as sensitivity to light, glare and variations to vision may be permanent as a result of the surgery.
(f) Patients may experience starburst or halo around lights at night. This effect tends to diminish after the first few months, but some element can be permanent.
Occasionally patients have severe enough persisting problems to make them feel insecure driving at night.
(g) There may be pain, particularly during the first 48 hours following surgery.
Complainant was also told that there could not be any guarantee as to success of this particular case. This is correct as no surgeon even a renowned one can ever guarantee the outcome of the operation performed by him.
Right eye of the complainant was operated upon on 6.1.1998 and the left on 9.1.1998. Operation was performed by Dr. Shroff. After the operation the complaint by the complainant was that he was having the problems of ghost images, distortion and after image and for that he consulted the opposite parties for treatment every fortnight and even sometime after 10 days. In the complaint though it was stated that these defects occurred in both the eyes but the complainant was unable to justify if there was any such defect in the left eye and Dr. Khetarpal, learned counsel for the complainant submitted that the defects were only in the right eye. Complainant said all these problems developed after surgery and even when he tried to wear glasses or contact lenses there was no improvement. Opposite parties however, dispute this contention and say that complainant had refused to wear glasses or contact lenses. Complainant then says he consulted various other doctors and even went abroad for the purpose. He said he was told that he had suffered central island in both the eyes which the complainant said was on account of deficiency in service and negligence in the performance of operation conducted by Dr. Shroff. Central island developed only in the right eye of the complainant. It has been explained after lasik or PRK, healing of the cornea can sometimes be irregular. A central island is one such irregularity and may be defined as a well circumscribed, usually central, circular or oval area of relatively greater corneal topographic power created within the region of reduced corneal topographic power created by Excimer laser PRK or lasik. As corneal cells (keratocytes) grow around the irregularity, the central island usually resolves without surgical intervention post-operatively within 6 to 12 months. It was stated that in 90% of the cases central island did resolve topographically by six months and in 10% cases it could be 12 months and may be after one and half years and may even necessitate a second operation.
Complainant says he went to Appolo Hospital and he also visited Dr. N.L. Vaish, Dr. Sanjeev Malik. He went to USA with a report prepared at his request by the opposite parties and there consulted Dr. Richard N. Baker of Laser Centre, Texas. On his second visit to the USA complainant says he consulted Dr. Malcolm Mazow and Dr. Lee It is stated that Dr. Stephen G. Slade of the Laser Centre performed second operation on the right eye of the complainant after 7-1/2 months of the first operation performed by Dr. Shroff. Complainant says he is not yet fully recovered. His case is that he suffered both in terms of monetarily and mentally and has thus made a claim of damages amounting to Rs.35.00 lakhs.
The report which the complainant wanted before going abroad for further treatment is dated 29.6.98 which is prepared by Dr. Mathur and reads as under:
Mr. Tarun Thakore first presented to the O.P.D. on 1.1.97 seeking an opinion regarding excimer laser PRK in both eyes.
Patient gives a history of never wearing glasses or contact lenses before although a power of
-7.00/-5.00 x 70 in the right eye & -5.00/-1.00 x 10 was prescribed for him elsewhere.
The patient is in good health: is an active sportsman & is not aware of any allergies. On examination his best corrected visual acuity in the right eye was 6/5 with -11.00 D Sph. & in the left eye 6/6 with -5.50 D Sph. (duochrome balanced). A cycloplegic refraction & post mydratic testing revealed consistant results. In both eyes IOP & anterior segment examination was within normal limits.
Retinal examination of both eyes revealed myopic Fundii. The left eye superiorily showed a patch of chorioretinal atrophy. Both eyes showed a normal topography with a central corneal power of 43.46D in the right eye & 43.48D in the left eye. Ultrasound pachymetry in both eyes was normal (Reports with patient).
The patient deferred surgery to a later date.
He presented one year later and after a repeated detailed testing which was consistent with the earlier results he underwent PRK in the right eye on 6/1/98 & in the left eye on 9/1/98.
A total correction of -9.50 D Sph. was attempted in the right eye & -5.50 D Sph. in the left eye. The patient was undercorrected by -1.50 D Sph. in right eye as an ablation depth beyond a 110 um was not desired in view of the patients activities ant the problem of haze due to scarring which could set in with deeper ablation. The approach had been explained to & accepted by the patient preoperatively.
The post operative period was uneventful. The patient was put on topical steroids, non steropidal anti inflammatory drops, antibiotics antiglaucoma medication & tear lubricants. He was assessed at one week, two weeks & then on a monthly basis.
At every visit a detailed refraction check, IOP check & a slit- lamp examination & corneal topography was done as well as a reassessment of the medication.
When examined on 7.2.98, the best corrected visual acuity in the right eye was 6/6 with -1.25/-1.00 x 90 degrees & in the left eye was 6/6 with -1.25/- plano lens.
Slit-lamp examination revealed 2+ haze in the right eye & 0.5 haze in the left eye. He was asked to continue topical steroids five times a day in the right eye & four times a day in the left eye. Corneal topography showed well centered ablation zones.
When examined on 2/3/98, the best corrected visual acuity in the right eye was 6/9 with
-3.00/-0.75 x 120 degree & in the left eye was 6/6 with -0.50 x 180. The right eye cornea revealed a +1 haze & left eye cornea was clear.
In view of the regression in the right eye, the patient was asked to start Predforte eye drops four times a day, Optipres (0.5%) eye drops two times a day & Tear Plus eye drops four times a day.
Patient complained of asthenopia on concentrating for longer periods of times with an after-image in the right eye. In view of the symptomatic anisometropia he was advised to make a temporary pair of glasses with a correction of -3.50 D shp. In the right eye & -0.25/-0.75 x 10 degree in the left eye & to gradually taper off the topical steroids. The corneal topography both eyes showed well-centered zones with a regression effect setting in inferiorly. The fundus examination was normal. He has now stopped all medications.
When last examined on 27/6/98 his acceptance was -3.50 -0.75 x 10 degree in the right eye & Plano in the left eye. The patient continues to have an after-image in the right eye & since he is unwilling to wear glasses, a contact-lens trial has been advised & an opinion regarding repeat surgery abroad was discussed. He has been advised to follow up with an ophthalmologist on a regular basis.
Neither the complainant nor any expert has questioned the veracity and the accuracy of this report.
It would appear that the complainant during the time of his consultation with the opposite parties, visited Sir Ganga Ram Hospital New Delhi on 30.5.98 where ECG was recorded. He consulted Dr. S.K.Sagani, Neurologist on 1.6.98 who advised MRI of brain which showed mild defuse cerebral and cerebellar atrophy (wasting of brain). Nerve conduction study was done on 5.6.98 at Sir Ganga Ram Hospital showing normal results. Para-nasal sinus report of 6.6.98 at Sir Ganga Ram Hospital showed chronic sinusitis. Prescriptions by Dr. N.L. Vaish, Eye Surgeon on 28.6.98, Dr. Sanjay Chaudhary,Eye Surgeon dt. 3.7.98, Dr. Vivek Pal, Eye Surgeon dt. 3.7.98, Dr. Sanjiv Malik, Eye Surgeon dt. 7.7.98 are brought on record. After getting detailed report dated 29.6.98 of the Shroff Eye Centre, prepared by Dr. Mathur complainant went to United States of America for treatment by Lasik Centre, Houston, Texas, treatment notes of which show cornea and lens in both eyes clear, vision with spectacles prefect, impression central island right eye.
Lasik surgery was performed there on the right on 6.8.98. Lasik operation report is as under:
Patient was brought to the LASER room, prepared and draped in the usual sterile fashion. The nomogram was decided upon and programmed into the LASER. The fluence was carefully tested. A lid speculum was inserted. The suction ring was placed and intraocular pressure measured then the microkerstone was used to create a corneal flap. This was reflected centration checked then the ablation was applied. The flap was replaced the bed was irrigated. Flap position was checked the speculum and drape were removed. The eye was rechecked. The patient was then sent to the recovery area.
Steophen G. Slade Surgeon Post operative treatment note show planned follow-up with doctor in India.
After coming back to India, Complainant consulted Dr. (Col) M.L. Suri, Neurologist, and on 9.12.98 Dr. Rajesh Acharya , who prescribed anti-depressants drugs. Complainant visited National Chest Research Institute on 26.12.98 which also prescribed anti-depressants drugs and anti-anxiety drugs. On 20.1.99 Dr. Suri recommended MRI of brain. Dr. Rajesh Kapoor on 21.1.99 on the MRI report of the complainant noted generalized prominence of ventricular system Dr. Suri prescribed on 8/12.2.99 more tranquilizers and a thyroid test.
Complainant made his second visit to USA on 6.5.99 to consult Dr. Richard Baker who gave introductory letter to Dr. Malcolm Mazow for observation purposes, which we reproduce:
Dr. Malcolm Mazow Houston Eye Associates 2835 Gramercy Houston, Texas 77025 713-668-6828 Dear Dr. Malcolm Mazow, This letter is to introduce to you Tarun Thakore, as per our telephone conversation, from India, who came to our office on 5.3.99 seeking a solution to his vision problem. Mr. Thakore originally was OD 11.00 DS and OS 5.50 DS and underwent a PRK in January of 1998 in India. This left him with complaints of ghost images in his right eye (report included). Our evaluation showed him to have a central island OD -3.75 DS 20/50 correctable to 20/25 with a hard contact lens trial.
We treated the central island with a Lasik style procedure. Results 2 weeks post operatively were OD Vsc 20/50+ OD+ 0.50 1.75 x 180 20/30+.
This seemed to make Mr. Thakore very happy and he returned to India.
He contacted us and is now concerned that he has a muscle problem and would like this evaluated (enclosed is copy of report). He has been told that it is possible that his large anisometropia may have limited his binocularity and now testing may show an interaction of his right inferior rectus, which could have been present before original surgery. We have suggested that if he would like to return, we would reassess his refractive error and binocularity to see if this is the cause of his complaints, during the same trip he would like to have his muscle imbalance evaluated. I am sending a copy of this letter to him with your phone number so that he can arrange the appointment.
Thanks for your willingness to evaluate him.
Dr. Mazow referred the complainant to Neurologist. Complainant was then examined by Dr. Andrew G. Lees (Neuro-opthomologist) who gave him a detailed report on May 26,1999. He summarized his report as under:
IN SUMMARY:
this 33 year old Indian male is status post PRK bilaterally and had a central island for which he underwent LASIK with improvement in his central vision but persistent monocular but bilateral diplopia. His main complaint however is oscillopsia* in extreme lateral gaze and he has end gaze horizontal, jerk beating nystagnmus. The differential diagnosis includes the use of tranquilizers and I asked the patient to discontinue the Aprazolam and the amitriptyline In my practice, the most common cause of this form of nonspecific horizontal end gaze jerk beating nystagmus in medication induced. My concern, however, is that this patient has had an MRI and it showed generalized prominence of the ventricular system more so on the left lateral ventricle* and that there were several punctate hyper intense signal intensity on the 12 weight images in the left frontal white matter. These were felt to represent ischemia, but at the age of 33, I would be much more concerned about demyelinating disease. I discussed in detail with the patient my concept of nystagmus and the need for further evaluation. I also asked him to discontinue his alcohol use. He is going to see Dr. Patel tomorrow, and I think consideration should be given for further evaluation for possible underlying demyelinating disease including repeating the MRI with FLAIR sequences or considering electro physiologic testing or a lumbar punctrure. He is going to discontinue the tranquilizers and have his original MR from 01/21/99 sent to us. In regards to his monocular but bilateral diplopia, I think he seems satisfied with his refractive correction although further could be considered in the future It would therefore appear that doctor concluded that the problem was medication induced, brain disorder required MRI. Dr. Lee was quite satisfied with the laser surgery performed on the complainant. Again coming back to India complainant consulted Dr. (Col) Suri, Dr. Rajesh Acharya and Dr. N.L. Vaish. At the instance of the complainant it would appear that Dr. Baker gave him a report dated May 22, 2002 which we reproduce:
May 22, 2000 To whom It May concern:
________________________________________________________________________ *Oscillopsia:
shaky vision due to unsteadiness of eyes caused by nystagmus *Ventricles:
all parts of the brain have certain hollow fluid filled cavities known as the ventricles. In certain brain disorders, these ventricles may enlarge (prominence of the ventricular system) especially if the surrounding brain tissue (white matter) wastes away as in cerebral or cerebellar atrophy I have been asked by Mr. Tarum Thakore to provide a report of Mr. Thakore condition when we first evaluated him.
Mr. Thakore came to our office on May 3, 1998 seeking a solution to his vision problem.
Mr. Thakore originally was OD 11.00 distance and OS 5.50 distance and underwent PRK in January of 1998 in India this left him with complication of ghost images in his right eye. Our evaluation showed him to have a central island in his right eye. OD 3.75 distance 20/50 correctable to 20/25 with a hard contact lens trial. We treated the central island with Lasik style procedure; results at 2 weeks post operative VSC 20/50+ OD + .50-1.75x180 20/30+ his left eye showed a slight irregularity, but was not treated. The treatment seems to have greatly reduced Mr. Thakore anisometropia and allowed for a better chance to use his eye together.
Reports of these doctors whom complainant consulted are on record. No one even remotely suggested that there was anything wrong in the recommendation of Dr. Shroff for the complainant undertaking laser surgery or that laser surgery was not properly performed or there was any negligence in the pre and post operative period of the surgery performed on the complainant A host of medical literature has been brought on record relating to PRK and Lasik methods and inter se merits and demerits of both the methods. We need not go into the intricacy of operation involved in either PRK or Lasik except to note that PRK method is well recognized specially in the case of high myopia. Both the procedures have plus and minus points compared to each other. In the study of moderate to high myopia with reference to PRK and Lasik prepared by a team of opthomologists led by Dr. Pteter S. Harsh it is mentioned that The essential outcomes of both PRK and LASIK in this study show no substantial differences in efficacy at 6 month follow-up, Both PRK and LASIK seem to be relatively safe and effective procedures for the correction of moderate to high myopia.
Photorefractive keratomileusis has the advantage of greater ease of surgery without complications associated with a corneal flap. Laser in situ keratomileusis has advantages of faster visual recovery and possibly less likelihood of loss of spectacle corrected visual acuity. It should be stressed that this study assessed one laser using a particular ablation algorithm and looked only at the correction of higher degrees of myopia. The relative results of PRK and LASIK using other lasers and for lower degrees of myopia await future clinical investigation.
In another study led by Dr. J.L. Menezo of Excimer laser photorefractive keratectomy for high myopia it is stated that the PRK results of our Group A with myopia upto -12.00 D, are very encouraging because the postoperative outcome is similar to that for low myopia. Predictability in eyes with Myopia over
-12.00 D was considerably lower, even though refractive and visual results were good in many cases. We recommend improving technique or choosing another type of surgery for these eyes.
Results of various other studies have also been brought on record giving even the disadvantage or drawback with Lasik . Some study also mentions that at times Lasik is preferable to PRK.
No expert in the present case who examined the complainant has stated that Lasik could have been preferred than PRK the procedure adopted by Dr. Shroff. Mr. Gaurav Bannerjee learned counsel for the opposite parties pointed out that at the time when Laser surgery (PRK) was performed on the complainant Lasik was not available even in USA, and it was only after six months that FDA (Federal Drug Authority) of USA gave its approval. It was submitted by Mr. Banerjee that the problem which complainant felt has nothing to do with Laser Surgery performed on him and that it is more neurological problem In this connection he made reference to letter of May, 1999 of Dr. Bekar to Dr. Malcolm Mazow where he says patient complains of muscle problem* and Dr. Bekar therefore, suggested his muscle imbalance evaluation.
A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of professional opinion. A medical practitioner is not an insurer, and so cannot be blamed every time if something goes wrong. Indeed, it is widely acknowledged that in medicine, in particular, things can go wrong in the treatment of a patient even with very best available care. This has now been reflected in judicial statements of the law.
In the case of Mahon v. Osborne - [1939] 2 KB 14, It was said:
A surgeon does not become an actual insurer; he is only bound to display sufficient skill and knowledge of his profession. If from some accident, or some variation in the frame of a particular individual, an injury happens, it is not a fault in the medical man.
Lord Scarman in Maynard v West Midlands Regional Health Authority
- [1984] 1 WLR 634, made the following observations:
It is not enough to show that there is a body of competent professional opinion which considers that [the defendants] was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other: but that is no basis for a conclusion of negligence.
________________________________________________________________________ *Cerebellum:
It is part of the brain which regulates balance, posture, movement, and muscle coordination (including eye muscles). Disease of cerebellum may lead to incoordination of movements, loss of balance, as well as eye movement disorders (including nystagmus).
In the case of Achutrao Haribhau Khodwa & Ors. vs. State of Maharashtra & Ors. (1996) 2 SCC 634, Supreme Court again considered as to what can be regarded negligence on the part of a doctor.
It said:
The test with regard to the negligence of a doctor was laid down in Bolam v. Friern Hospital Committee. It was to the effect that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. This principle in Bolam case has been accepted by the House of Lords in England as applicable to diagnosis and treatment (See Sidaway v. Board of Governors of Bethlem Royal Hospital (AC at 881).
Dealing with the question of negligence, the High Court of Australia in Rogers v. Whitaker has held that the question is not whether the doctors conduct accords with the practice of a medical profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law.
That is a question for the court to decide and duty of deciding it cannot be delegated to any profession or group in the community. It would, therefore, appear that the Australian High Court has taken a somewhat different view than the principle enunciated in Bolam case.
This Court has had an occasion to go into this question in the case of Laxman Balkrishna Joshi (Dr.) v. Dr Trimbak Bapu Godbole. In that case the High Court had held that the death of the son of the claimant was due to the shock resulting from reduction of the patients fracture attempted by the doctor without taking the elementary caution of giving anaesthetic. In this context, with reference to the duties of the doctors to the patient, this Court, in appeal, observed as follows:
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 possessed 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 that 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.
Supreme Court then opined as under:
The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.
After examining whole aspect of the matter it would appear that any allegation of negligence attributed to the opposite parties is wholly misplaced. Before the operation was performed complainant was well-aware of the procedure and the consequences. There is no deficiency in the operation and there is no negligence. As a matter of fact there is no allegation of any negligence against Dr. Mathur, the second opposite party. Her being impleaded as an opposite party was not proper. An allegation of negligence against a doctor is a serious matter. It is an attack on his professionalism which he will certainly feel deeply. Complainant has utterly failed to prove any negligence of any sort against Dr. Shroff.
In this view of the matter it is not necessary for us to compute the alleged damage or compensation suffered and claimed by the complainant. We would, therefore, dismiss this complaint with costs which we assess at Rs.10,000/- to Dr. Shroff and Shroff Eye Centre and Rs.20,000/- to Dr. Mathur J (D.P. WADHWA) PRESIDENT J (J.K. MEHRA) MEMBER .
(RAJYALAKSHMI RAO) MEMBER