Applying all the above principles to this instant case, we are convinced that there is no medical negligence – admittedly, the OPs are qualified doctors and they have used their best professional judgment at the time of treating the Diabetic Complications in the both eyes of complainant. The loss of vision was due to severity Proliferative Diabetic Retinopathy and not due to the mode of treatment or surgeries conducted by OP. We are also of considered view that Referral is not abandonment. Referring a patient is not a case of abandonment or negligence. Although referrals generally improve the quality and care to the patients, it sometimes happens that a patient claims injury while under treatment. A doctor cannot be charged against patient abandonment if he or she refers the patient to another physician. Healthcare providers are bound by a code of ethics that states that a professional, who begins treating a patient’s illness willingly, should complete the treatment to the best of his or her ability. Healthcare professionals should not stop treatment, unless they are not able to treat the patient correctly or if they disagree with the patient about the way in which treatment is being administered.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO. 107 OF 2002
Babu Lal Gupta (Deceased)
Versus
1. Navjyoti Eye Centre
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
Pronounced On 1st November , 2013
1. The complainant has filed this complaint under Sections 21 & 22 of the Consumer Protection Act, 1986 alleging medical negligence and deficiency in service on the part of opposite parties in the treatment of the complainant and has claimed compensation of Rs. One crore, with litigation cost from the Opposite parties, jointly and severally.
2. The Complainant, aged about 57 years is a businessman, in Delhi, having lucrative business of electric bulbs and tubes. He was a patient of diabetes, which was under control by medication without any complications. The Complainant took some laser treatment in February 1999 and his eyesight was working quite well. In September 2000, Complainant consulted Dr. Shroff’s Charity Eye Hospital, Kedarnath Road, Darya Ganj, New Delhi, for some pain in his eyes. Thereafter, on 14.09.2000, the Complainant was treated at Dr. Shroff’s Charity Eye Hospital and he underwent operation on the left eye- fill in laser photocoagulation, by indirect laser ophthalmoscope. The said hospital vide letter (Annexure- 1) dated 18/11/2000, referred him for the further evaluation and line of management to Dr. Lingam Gopal, Consultant Vitreo Retina Services, Medical Research Foundation, Chennai.
3. On 30.11.2000, the Complainant was examined at Medical Research Foundation, Chennai on OPD basis and advised surgical intervention in Right eye, virectomy with belt buckling and membrane pealing with silicon oil injection and endo-laser. For the left eye, it was decided for laser treatment in case the heam absorbed spontaneously. Accordingly, the complainant was advised to be on waitlist, due to their backlog of appointments for the surgery and also agreed to accommodate Complainant in case of cancellation of any other patient. Further, to avoid delay and any unexpected complications during waiting period, he was advised to seek other medical facility, elsewhere. The Medical Research Foundation informed the Complainant that the staff or the management of Medical Research Foundation i.e. Sankara Nethralaya, should not be held liable or responsible for any such unfortunate complications, which can develop in the eyes of the Complainant, on account of the time lag between the time of examination of the eye of the Complainant and the actual surgery.
4. Therefore, the complainant approached OPs for further management because the OPs assured him that they were well equipped and would treat / conduct any surgery, on eye (Annexure 4). Complainant was examined by OPs and it was revealed that the Complainant’s visual acuity was only a perception of light in both the eyes, but there was no hand movement or finger counting. Complainant contended that the assessment made by the OPs was contradictory to the assessment made by the Sankara Nethralaya, Chennai. Since the Sankara Nethralaya, Chennai is a well-equipped, reputed Eye Centre, in the world, and several complicated cases are referred to them, therefore, their assessment must definitely be correct .Thus, on comparing both assessments made, one by the OPs and another by Sankara Nethralaya revealed that the OPs did a wrong assessment of vision in both eyes. It was OP’s malafied intention to create fear in mind of complainant; and gave immediate treatment to Complainant at higher cost.
5. Therefore, in view of above facts complainant’s grouse that the OPs acted against the advice of the Sankara Nethralaya and their act was totally unscrupulous to extract monetary gain at the expense of the eyesight of the Complainant. On 06.12.2000, OP performed surgery of the left eye of complainant, instead of Right eye of the Complainant, as against the advice of Sankara Nethralaya, as laser treatment was advised. Then, on 17/01/2001, OP performed a surgery on Right eye of the Complainant. The complainant did not get relief, despite both surgeries, but in fact, he experienced further deterioration of vision in both eyes.
6. Subsequently, as per OPs instructions, complainant underwent another two surgeries, on left eye on 10/04/2001 and 08/05/2001. Thereafter, i.e. after three operation on left eye, and one operation on the right eye, the OPs, to save their skin, referred the Complainant to the Eye Research Centre and Retina Foundation, Ahmedabad, to seek advice in the case. After examination, the said Foundation sent a letter (Annexure 11 ) dated 14.06.2001 to the OPs, wherein it advised as under :-
Right eye : Review after 6 months and
Left eye : guarded visual prognosis explained and no active treatment advised.
Complainant further contended that the Retina Foundation, Ahmedabad advised removal of Silicon Oil which was not specifically mentioned in the said letter. Accordingly, he approached OP, but the OP instead of removing Silicon oil, it referred the complaint to Sankara Nethralaya, Chennai stating that band has developed which needs expert opinion from Sankara Nethralaya , Chennai. Accordingly, on 27/07/2001, complainant visited Sankara Netralaya, which after examination, found that due to visual acuity of 3/36 in Rt eye and hand movement close to face in left eye, advised for removal of Silicon Oil from Right Eye (Annexure 8). Therefore, complainant contacted the OP but OP despite advice of Sankara Netralaya, did not remove the silicon oil from Right Eye. Hence, to avoid loss of vision, complainant again went to Sankara Nethralaya on 6/10/2001; but subsequently after examination, it was advised by Sankara Nethralaya that it was not necessary to remove silicon oil, but stated that complainant would require Silicon Oil removal with Guarded Prognosis, if he develops high intraocular pressure or Corneal Complication (as per case summary Annexure -9 dated 10/10/2001).
7. Thereafter, Complainant again contacted OPs for further management to avoid any further loss to his vision. But, just for a monitory gain, the OPs operated upon him for Glaucoma, on 19/11/2001. It was performed against the specific advice of higher centers and further contended that neither Sankara Nethralaya nor Retina Foundation Ahmedabad, have diagnosed Glaucoma. Also, the Retina Foundation , Ahmedabad, had advised no active treatment for left eye.
8. At this stage, OP referred the Complainant to Dr. Atul Kumar of Dr. Rajendra Prasad Centre for Ophthalmic Sciences , AIIMS, New Delhi (Annexure -11) who issued a certificate that complainant had suffered 100% visual handicap. (Annexure -12).
9. Therefore, instead of improvement in vision there was deterioration of vision due to negligence of OP . The complainant suffered 100% loss of vision, which led to loss in his business, became dependent upon others, suffered depression and became totally incapacitated, at the age of 55 years. The complainant was referred to Ahmedabad and Chennai who incurred huge expenses. Therefore, he served two legal notices on OP, in order to get proper treatment and relief. (Annexure 13, 14). In view of aforesaid facts, Complainant approached this Commission, on 14/3/2002, by filing this complaint for compensation amounting to Rs. One Crore from OPs, jointly and severally. Complainant had placed supporting documents marked as Annexure 1 to 15, on record and also produced medical bills, medical records etc.
10. The Defense:
Both the Opposite parties, OP-2 Dr. Vivek Pal and OP-3, Dr. J. S. Guha filed their joint version, relevant documents and separate affidavits by way of evidence.
(i) The OPs submitted that, the complainant was a known case of diabetes since 30 years. On 25/11/2000, complainant approached OP for markedly diminished vision, in both eyes, while he was under Laser (PRP) treatment, elsewhere. The OP diagnosed him as a case of Progressive Diabetic Retinopathy (PDR) and posterior polar cataract in both eyes. He developed ocular complication, known as diabetic retinopathy which is highly self-progressive in nature. The said facts were duly explained to the Complainant and he was advised to undergo an immediate surgery in his left eye for vitreous hemorrhage and proliferative diabetic retinopathy.
(ii) The vision in both eyes of the Complainant was extremely poor, there was only perception of light and no hand movement or finger counting and poor prognosis due to high level of retinopathy. The OP also found that Complainant had cataract in both eyes and there was vitreous hemorrhage in left eye which was constantly progressing for the last three months and was not responding to laser treatment. The decision to operate his left eye was taken in order to provide him the ambulatory vision and save his left eye. As far as his right eye was concerned, it was in advance stage of retinopathy and he was warned of a very guarded prognosis from other places.
OPs provided treatment, as follows:
(iii) On 06.12.2000, the Complainant’s left eye was operated for vitreous haemorrhage and proliferative diabetic retinopathy. Dr. J. S. Guha (OP-3) conducted a surgery “Pars Plana Virectomy with membrane peeling with dissection, endo laser, fluid air exchange with Silicon oil injection. The post-operative recovery was smooth. Complainant, who was suffering from absolutely nil vision before surgery, got his vision corrected, after surgery, which was 6/60, in left eye. As the Complainant was extremely satisfied with the care and results, he requested the OP-3 to conduct surgery on his right eye, which was already advised to him by other doctors, including Dr. Shroff and Shankar Nethralaya. Accordingly, OP-3 performed surgery on his right eye, on 17.01.2001. The OP-2 Dr. Vivek Pal, who is a Cataract and Phaco Surgery specialist removed cataract of Rt. eye and performed Phacoemulsification with +17.5 DP/C IOL, along with Pars Plana Virectomy (PPV) with membrane peeling with dissection , endo laser, fluid air exchange with Silicon oil injection and encircle for tractional retinal detachment. Also, OP-2 removed the cataract, from left eye on 10.04.2001. All surgeries were successful, and complainant gained vision of 6/60 in Left eye and vision in Right eye at extent of counting of fingers.
(iv) Thereafter, the complainant developed complications, like raised intraocular pressure, but the OPs contended that none of those complications were on account of the surgeries performed by them but was as a result of diabetic retinopathy being self- progressive in nature. The Retina Foundation, Ahmedabad, suggested that the Complainant be kept under observation without any surgical intervention. This non-surgical approach was naturally with regard to his retinal disease/oil removal. On 09.08.2001, as the Complainant developed increased intra ocular pressure (IOP) in the left eye, due to recurrent Partial Iris Bombe, Peripheral Iridectomy by Yag Laser (Yag P) was done on left eye, which controlled the intra ocular pressure. Thereafter, his IOP was again found to be elevated, on 17.10.2001 and the Complainant was prescribed medicines to bring the pressure to the normal level. OP did not charge any expenses from the Complainant for this surgery at his request. Unfortunately, however, he developed a fresh membrane in his left eye, on account of high diabetes.
(v) The Complainant insisted for the removal of silicon oil, which in the opinion of the OPs was not feasible in his case as the raised intraocular pressure of the Complainant was not because of the Silicon oil, but it was on account of high diabetes. As the Complainant had developed the membrane on retinal surface, despite the silicon oil being in place, the OPs were of definite opinion that the removal of silicon oil, at this stage, may require a separate surgery of injecting the silicon oil again to prevent the diabetic complication.
(vi) Meanwhile, on 17.10.2001, the Complainant asked for his medical reports which were sent to him. The Complainant sent a frivolous notice making reckless allegations. But, again, the Complainant came to the OPs, on 08.11.2001 and he apologized for having sent a frivolous notice and had requested OP to examine his eye. On examination of OP, it was noted that Complainant was having markedly high pressure in his left eye i.e. ‘secondary glaucoma’. It was also noticed that the medicines which were prescribed to him, on 17.10.2001, were not taken by him, which had further caused complications in his case. Another surgery was performed, on 19.11.2001, after explaining him the limitations of the surgery. The surgery was totally free of cost and nothing was charged, at his request.
Discussion:
11. We have perused the evidence on record adduced by both the parties and several documents on file, like the medical records, referral letters and medical bills, etc. The Learned Counsel, Shri Manoranjan Sinha for the Complainant and learned Counsel Smt. Anu Narula, on behalf of Opposite parties, advanced their respective arguments. We have heard their exhaustive arguments, at length, for 4 days.
12. We have noted that the complainant died during pendency of this case, accordingly, the legal heirs were brought on record.
13. We have perused following Exhibits furnished by complainant :
· Annexure 1 – is a reference letter to Dr. Lingam Gopal, Consultant Vitrio Retina Services at Medical Research Foundation, Chennai (in short MRF, Chennai), which clearly goes to reveal that it was a letter of reference, seeking advice and mode of further management in this case.
· Annexure 2- the Schedule issued by Medical Research Foundation, Chennai, which reveal the waitlisted status of complainant.
· Annexure -3 is the letter issued by MRF, Chennai to the patient- Complainant, Babulal Gupta, dated 30/11/2000 which clearly stated:-
“The undersigned has since examined your eyes and the condition requires surgical procedures namely Vitrectomy + Belt Buckling + Membrane pealing. However, as there is a backlog of appointments for the surgery we find ourselves unable to give you an immediate surgery date;
x……x…. x
We wish to apprise you of the fact that in view of the inevitable and unavoidable delay that may ensure in giving you the you the surgery appointment, as a result of the heavy backlog of cases, there may be a possibility of complications, developing in your eye condition during the period of waiting list. . We advise you to seek alternative medical facility elsewhere.”
· We have perused three Case Summaries issued by MRF, Chennai, which are marked as Exhibits Annexures 5,7 and 9.
The Case Summary dated 3/2/2001 (Annexure 5) revealed that the left eye showed inferior vitreous haemorrhage; marks of Laser photocoagulation. The ultrasound examination of right eye showed the peripaillary tractional retinal detachment, along with incomplete posterior vitreous detachment, along with incomplete posterior vitreous detachment. It was advised for vitrectomy + belt buckling + membrane pealing + silicon oil injection and endolaser for the right eyes. The guarded surgical visual prognosis was explained to the complainant. Regarding the left eye, it was decided that in case the haem absorbed spontaneously, he can have laser in the left eye. The patient did not report for the surgery in the right eye.
· On further perusal of Annexure 7, the Case Summary dated 6/8/2001 mentioned that ; complainant had a visual acuity of 3/36 in the right eye and hand movements close to face in the left eye. Anterior segment revealed posterior chamber intraocular lens in both the eyes. Applanation tension was 14 mm of Hg in both the eyes. Fundus of the right eye revealed clear media, attacked retina, pale disc and peripheral laser marks. The left eye fundus revealed grossly disorganised retinal detachment which is not amenable for further surgery. The right eye would need silicone oil removal.
· On further perusal of Annexure 9, the Case Summary dated 10/10/2001 part of it is narrated as follows: “ This is in continuation of the previous case summary dated 06.08.2001, Mr. Babu Lal Gupta (our MRD No. 474380) was examined here on 06/10/2001 for removal of silicone oil in the left eye, as advised before.
x………x………x
Considering the new findings, we did not advise silicone oil removal now because his intraocular pressure was well within normal limits and there was no evidence of any corneal complications either. However, if the patient develops high intraocular pressure or corneal complications, he would require silicone oil removal with guarded prognosis.” It is signed by Dr.Pratik Ranjan Sen at MRF,Chennai.
· The exhibit Annexure 11 - letter from Dr. Kamal Nagpal of Eye Research Centre and Retina Foundation,Ahemedabad dated 14/6/2001 advised the patient as: RE: Review after 6 months, and LE: Guarded visual prognosis explained and no active treatment advised.
· The Annexure -12, a certificate dated 29/1/2002 issued by Dr. Rajendra Prasad Centre for Ophthalmic Sciences, AIIMS, New Delhi stating that the complaint suffers from 100% visual handicap.
14. We have perused the referral letters/ email communications made by the OP-3 to Dr. Lingam Gopal and Dr. Pran Nagpal to discuss the problem and modalities of treatment of complainant’s eyes. The reply emails (Ex R-2A) dated 16/4/2004 from Dr. Lingam Gopal and from Dr. Pran Nagpal of Retina Foundation, Ahmedabad on 22/4/2004 (Ex R-2B) to Dr Jayant Guha clarifies the reality in this case.
15. The email message Ex R-2 A is reproduced as follows:
Dear Mr. Guha,
Thank you for your e-mail dated 16th April, 2004, asking me to specifically advise whether the surgery to be done in the left eye or the right eye first. The decision to perform the surgery in one eye or the other is based upon many factors including the condition of the eye, rapidity of duration and the chances of salvaging the eye with surgery.
I understand from your report that the left eye has recurrent vitreous haemorrhage and the vision has dropped from 6/36 to finger counting close to face. Hence, the surgery in either of the eyes could be performed since the surgery was required in both eyes at the stage when the vision in the left was also poor. Whether the surgery would be successful or could result in problems obviously could not be anticipated before the surgery. Probably this has nothing to do with which eye to be operated first or later.
Thanking you,
Yours sincerely,
Dr. Lingam Gopal
16. The email message Ex R-2 B is reproduced as follows:
Dear Jayanto,
Thanks for asking me to indulge in commenting upon your decision regarding your patient of Proliferative Diabetic Retinopathy BE and with vitreous Haemorrhage LE and TRD RE. I think your decision to operate the LE is quite justified. Early virectomy done in a vitreous Haemorrhage always gives a better chance to stabilise and recover more vision. Moreover virectomy creates an artificial PVD which is ideal situation to prevent recurrence of bleeding. This fact is borne by the multicentre DRVS (Diabetic Retinopathy Virectomy Study) and by the opinion of Dr. Z. Gregor of Moorefield Eye Hospital, London.
I have also gone through our case summary of the same patient (Mr. B.L. Gupta, our Reg. No. 2001/6/1495). We have not advised anything active now that the IOP is ok and there is no other complication of Silicon Oil. Moreover, with all that sub retinal and sub silicone oil proliferation and the consecutive optic atrophic change, the expectation of any useful vision is less. There is a possibility that the removal of Silicone Oil may trigger the extension forward of the proliferations and endanger the state of the eye. Probably your decision not to remove the oil was guided by these factors and so you did the right thing when you decided not to remove the silicon oil.
Regards,
Pran Nagpal
17. Now the points for our consideration, to decide this case are:-
i) Whether the Complainant has proved the deficiency in service, on the part of opposite parties?
ii) Whether OPs acts show elements of negligence?
iii)Whether the Complainant deserves for relief, as prayed?
The findings to above points are:
i) In the Negative
ii) In the Negative
iii) As per following reasons ;
Reasons:
18. It is an admitted fact that Complainant was a known diabetic patient for past 3 decades and was under treatment for the same. Complainant consulted the OP for the complications / complaints in his eyes ; the OP diagnosed him as a case of PDR with bilateral posterior polar cataract and advised treatment accordingly.
19. Perusal of Annexures 5, 7 and 9 clearly show that the Complainant was suffering from advanced ocular complications of Diabetes mellitus. The OPs- 2 and 3 are qualified and competent to treat such complications, and they have treated the Complainant, with due diligence, as per standards of Ophthalmic Practice. It is pertinent to note that OP sought opinions from the Experts, Dr. Lingam Gopal and Dr. Dr. Kamal Nagpal who were specialists in the same field, for further management. The higher centres like Shankar Netralaya, Chennai and Eye Research Centre and Retina Foundation, Ahmedabad, are well known reference centres, having international repute.
20. The main question which swirls around in this case is that “Why was the complainant subjected to multiple operations, on his eyes and the reason for his frequent references. It is important to note that the Complainant was, at first instance, on 30/11/2000, examined by Sankara Netralaya, Chennai, which confirmed the severity of eye condition of the complaint . Due to heavy backlog at Shankar Netralaya, they advised the patient to seek other alternative centre, for his treatment, to avoid complications, due to delay. Therefore, complainant approached OP again, for further treatment. The OPs have treated him, as per the signs and symptoms of the case. We do not find an iota of negligence in the mode of treatment given by OPs. The OPs referred the complainant to higher Institutes at Chennai and Ahmedabad to seek opinion and to follow the treatment as advised . It is evident from record that OP-3 consulted the Experts, like Dr. Lingam Gopal and Dr. Pran Nagpal to ascertain the correctness of his treatment on the complainant. The replies emails, Ex. R-2 A and Ex.R-2 B clearly establish the correctness of mode of treatment adopted by OPs.
21. To know more about the Ocular Complications of Diabetes and modalities of treatment in case of PDR, Cataract etc. , reliance was placed upon several Standard Medical Books, like Harrison’s Internal Medicine, Ophthalmology, 4th Edition by Myron Yanoff , Jay Duker and Duke-Elder's System of Ophthalmology . It is known that due to prolonged diabetes patient ( chronic) even if under control will have tendency to develop complications like Diabetic Nephropathy, Neuropathy, Retinopathy. The complainant herein was a juvenile diabetes patient for 30 years and unfortunately developed such ocular (eye) lesions which subsequently lead to complete loss of vision. We cannot correlate or agree with the allegations of complainant that such loss of vision was due to multiple surgeries performed by the OP.
22. It appears to be a case of breach of conduct between the Doctor-Patient relationship. After consultation with Sankara Netralaya which expressed its inability to accommodate complainant for surgery due to heavy waitlist, the complainant preferred to take treatment from the OP to avoid further eye complications, during delay period. But, he also had an option to approach another Ophthalmologist, in his city.
23. We do not agree to the allegations of Complainant that OPs did not follow instructions of referral centres, but in our opinion, the OPs treated the complainant, as per the progression of disease. It is the treating doctor, who can decide and judge the line of treatment, after due examination of patient. He could choose any different line of treatment, which is accepted by the medical authority. Even we appreciate the attempts of OPs who referred the complainant to higher Institutes at Chennai and Ahmedabad, to seek opinion and further line of treatment. Also, the OP-3, through email (Ex R-2 B) consulted the Experts, like Dr. Lingam Gopal and Dr. Pran Nagpal to ascertain the correctness of his treatment given to the complainant. The Experts replies through emails Ex. R-2 A and Ex.R-2 B, clearly establish the correctness of mode of treatment adopted by OPs.
24. In the instant case, had the OP avoided the treatment of complainant for Vitreous Haemorrhages, it would have led to several other ocular complications. Therefore, we do not find that OPs had deviated from any Standard of Medical (ophthalmic) Practice.
Since the present case is based upon an allegation of deviation from ordinary professional practice, it is worth to quote the Scottish case Hunter v Hanley1955 SC 200 in which Lord President Clyde, held:-
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."
He also laid down the following requirements to be established by the patient to fasten liability in case of negligence committed by a doctor:
"To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course, the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on the pursuer to establish these three facts, and without all three, his case will fail."
25. What constitutes Medical Negligence, has been discussed in several rulings of the Hon’ble Supreme Court of India and by this Commission, The Hon’ble Supreme Court in Jacob Mathew V State of Punjab & Anr, (2005) 6 SSC 1= III (2005) CPJ 9 (SC) had concluded that,
“ a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.”
26. In the Bolam’s case (Bolam Vs. Frien Hospital Management Committee (1957) 1 WLR 582 it was also held that a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view. Essentially three principles are applied to decide negligence of doctor;
(i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time;
(ii) Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field.
(iii) Whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated.
In the present case our answer to all points is ‘YES’, because both the OP doctors are qualified Ophthalmologists, practicing since 2 decades. The OP-2 is a Super Specialist in IOL and Myopia Corrective surgery. The OP-3 is a Consultant Retina Surgeon attached to OP-1, the Navajyoti Eye Centre. They have adopted the standards of practice, in proper diagnosis, referral and further management. Therefore, in the instant case OP-2 and 3 are qualified and skilled in their speciality , hence, no negligence can be attributed to their attempts.
27. In Achutrao Haribhau Khodwa vs. State of Maharastra - 1996 (2) SCC 634, Hon’ble Supreme Court held :
"The skill of medical practitioners differs from doctor to doctor. The 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. In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable."
28. In the case of Kusum Sharma Vs. Batra Hospital(2010 CPJ) discussed several principles to decide negligence have been laid down, the relevant Para is reproduced as:
“ xi. 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”.
29. Applying all the above principles to this instant case, we are convinced that there is no medical negligence – admittedly, the OPs are qualified doctors and they have used their best professional judgment at the time of treating the Diabetic Complications in the both eyes of complainant. The loss of vision was due to severity Proliferative Diabetic Retinopathy and not due to the mode of treatment or surgeries conducted by OP. We are also of considered view that Referral is not abandonment. Referring a patient is not a case of abandonment or negligence. Although referrals generally improve the quality and care to the patients, it sometimes happens that a patient claims injury while under treatment. A doctor cannot be charged against patient abandonment if he or she refers the patient to another physician. Healthcare providers are bound by a code of ethics that states that a professional, who begins treating a patient’s illness willingly, should complete the treatment to the best of his or her ability. Healthcare professionals should not stop treatment, unless they are not able to treat the patient correctly or if they disagree with the patient about the way in which treatment is being administered.
30. Hence, we do not find that the OPs have deviated from Standards of Medical Practice during entire treatment of the complainant. Accordingly, we dismiss the complaint. No order as to costs.
…..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
…..…………………………
(Dr. S. M. KANTIKAR)
MEMBER
Mss/25
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO. 107 OF 2002
Babu Lal Gupta (Deceased)
Through Legal Heirs
1. Rajesh Gupta
S/o Late Sh. B.L. Gupta,
R/o D/12, H.No. 112, Sec-8
Rohini, Delhi-85.
2. Pradeep Guha
S/o Late Sh. B.L. Gupta,
R/o D/12, H.No. 112, Sec-8
Rohini, Delhi-85. …Complainants
Versus
1. Navjyoti Eye Centre
(Complete Eye Care Clinic)
90, Darya Ganj, New Delhi-2
2. Dr. Vivek Pal,
(Navjyoti Eye Centre)
90, Darya Ganj, New Delhi-2
3. Dr. J.S. Gupta (Navjyoti Eye Centre)
(Complete Eye Care Clinic)
90, Darya Ganj, New Delhi-2 …Opposite Parties
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Complainants : Mr. Manoranjan, Advocate
For the Opposite Parties : Mr. Anu Narula, Advocate
Pronounced On 1st November , 2013
ORDER
PER DR. S.M. KANTIKAR
1. The complainant has filed this complaint under Sections 21 & 22 of the Consumer Protection Act, 1986 alleging medical negligence and deficiency in service on the part of opposite parties in the treatment of the complainant and has claimed compensation of Rs. One crore, with litigation cost from the Opposite parties, jointly and severally.
2. The Complainant, aged about 57 years is a businessman, in Delhi, having lucrative business of electric bulbs and tubes. He was a patient of diabetes, which was under control by medication without any complications. The Complainant took some laser treatment in February 1999 and his eyesight was working quite well. In September 2000, Complainant consulted Dr. Shroff’s Charity Eye Hospital, Kedarnath Road, Darya Ganj, New Delhi, for some pain in his eyes. Thereafter, on 14.09.2000, the Complainant was treated at Dr. Shroff’s Charity Eye Hospital and he underwent operation on the left eye- fill in laser photocoagulation, by indirect laser ophthalmoscope. The said hospital vide letter (Annexure- 1) dated 18/11/2000, referred him for the further evaluation and line of management to Dr. Lingam Gopal, Consultant Vitreo Retina Services, Medical Research Foundation, Chennai.
3. On 30.11.2000, the Complainant was examined at Medical Research Foundation, Chennai on OPD basis and advised surgical intervention in Right eye, virectomy with belt buckling and membrane pealing with silicon oil injection and endo-laser. For the left eye, it was decided for laser treatment in case the heam absorbed spontaneously. Accordingly, the complainant was advised to be on waitlist, due to their backlog of appointments for the surgery and also agreed to accommodate Complainant in case of cancellation of any other patient. Further, to avoid delay and any unexpected complications during waiting period, he was advised to seek other medical facility, elsewhere. The Medical Research Foundation informed the Complainant that the staff or the management of Medical Research Foundation i.e. Sankara Nethralaya, should not be held liable or responsible for any such unfortunate complications, which can develop in the eyes of the Complainant, on account of the time lag between the time of examination of the eye of the Complainant and the actual surgery.
4. Therefore, the complainant approached OPs for further management because the OPs assured him that they were well equipped and would treat / conduct any surgery, on eye (Annexure 4). Complainant was examined by OPs and it was revealed that the Complainant’s visual acuity was only a perception of light in both the eyes, but there was no hand movement or finger counting. Complainant contended that the assessment made by the OPs was contradictory to the assessment made by the Sankara Nethralaya, Chennai. Since the Sankara Nethralaya, Chennai is a well-equipped, reputed Eye Centre, in the world, and several complicated cases are referred to them, therefore, their assessment must definitely be correct .Thus, on comparing both assessments made, one by the OPs and another by Sankara Nethralaya revealed that the OPs did a wrong assessment of vision in both eyes. It was OP’s malafied intention to create fear in mind of complainant; and gave immediate treatment to Complainant at higher cost.
5. Therefore, in view of above facts complainant’s grouse that the OPs acted against the advice of the Sankara Nethralaya and their act was totally unscrupulous to extract monetary gain at the expense of the eyesight of the Complainant. On 06.12.2000, OP performed surgery of the left eye of complainant, instead of Right eye of the Complainant, as against the advice of Sankara Nethralaya, as laser treatment was advised. Then, on 17/01/2001, OP performed a surgery on Right eye of the Complainant. The complainant did not get relief, despite both surgeries, but in fact, he experienced further deterioration of vision in both eyes.
6. Subsequently, as per OPs instructions, complainant underwent another two surgeries, on left eye on 10/04/2001 and 08/05/2001. Thereafter, i.e. after three operation on left eye, and one operation on the right eye, the OPs, to save their skin, referred the Complainant to the Eye Research Centre and Retina Foundation, Ahmedabad, to seek advice in the case. After examination, the said Foundation sent a letter (Annexure 11 ) dated 14.06.2001 to the OPs, wherein it advised as under :-
Right eye : Review after 6 months and
Left eye : guarded visual prognosis explained and no active treatment advised.
Complainant further contended that the Retina Foundation, Ahmedabad advised removal of Silicon Oil which was not specifically mentioned in the said letter. Accordingly, he approached OP, but the OP instead of removing Silicon oil, it referred the complaint to Sankara Nethralaya, Chennai stating that band has developed which needs expert opinion from Sankara Nethralaya , Chennai. Accordingly, on 27/07/2001, complainant visited Sankara Netralaya, which after examination, found that due to visual acuity of 3/36 in Rt eye and hand movement close to face in left eye, advised for removal of Silicon Oil from Right Eye (Annexure 8). Therefore, complainant contacted the OP but OP despite advice of Sankara Netralaya, did not remove the silicon oil from Right Eye. Hence, to avoid loss of vision, complainant again went to Sankara Nethralaya on 6/10/2001; but subsequently after examination, it was advised by Sankara Nethralaya that it was not necessary to remove silicon oil, but stated that complainant would require Silicon Oil removal with Guarded Prognosis, if he develops high intraocular pressure or Corneal Complication (as per case summary Annexure -9 dated 10/10/2001).
7. Thereafter, Complainant again contacted OPs for further management to avoid any further loss to his vision. But, just for a monitory gain, the OPs operated upon him for Glaucoma, on 19/11/2001. It was performed against the specific advice of higher centers and further contended that neither Sankara Nethralaya nor Retina Foundation Ahmedabad, have diagnosed Glaucoma. Also, the Retina Foundation , Ahmedabad, had advised no active treatment for left eye.
8. At this stage, OP referred the Complainant to Dr. Atul Kumar of Dr. Rajendra Prasad Centre for Ophthalmic Sciences , AIIMS, New Delhi (Annexure -11) who issued a certificate that complainant had suffered 100% visual handicap. (Annexure -12).
9. Therefore, instead of improvement in vision there was deterioration of vision due to negligence of OP . The complainant suffered 100% loss of vision, which led to loss in his business, became dependent upon others, suffered depression and became totally incapacitated, at the age of 55 years. The complainant was referred to Ahmedabad and Chennai who incurred huge expenses. Therefore, he served two legal notices on OP, in order to get proper treatment and relief. (Annexure 13, 14). In view of aforesaid facts, Complainant approached this Commission, on 14/3/2002, by filing this complaint for compensation amounting to Rs. One Crore from OPs, jointly and severally. Complainant had placed supporting documents marked as Annexure 1 to 15, on record and also produced medical bills, medical records etc.
10. The Defense:
Both the Opposite parties, OP-2 Dr. Vivek Pal and OP-3, Dr. J. S. Guha filed their joint version, relevant documents and separate affidavits by way of evidence.
(i) The OPs submitted that, the complainant was a known case of diabetes since 30 years. On 25/11/2000, complainant approached OP for markedly diminished vision, in both eyes, while he was under Laser (PRP) treatment, elsewhere. The OP diagnosed him as a case of Progressive Diabetic Retinopathy (PDR) and posterior polar cataract in both eyes. He developed ocular complication, known as diabetic retinopathy which is highly self-progressive in nature. The said facts were duly explained to the Complainant and he was advised to undergo an immediate surgery in his left eye for vitreous hemorrhage and proliferative diabetic retinopathy.
(ii) The vision in both eyes of the Complainant was extremely poor, there was only perception of light and no hand movement or finger counting and poor prognosis due to high level of retinopathy. The OP also found that Complainant had cataract in both eyes and there was vitreous hemorrhage in left eye which was constantly progressing for the last three months and was not responding to laser treatment. The decision to operate his left eye was taken in order to provide him the ambulatory vision and save his left eye. As far as his right eye was concerned, it was in advance stage of retinopathy and he was warned of a very guarded prognosis from other places.
OPs provided treatment, as follows:
(iii) On 06.12.2000, the Complainant’s left eye was operated for vitreous haemorrhage and proliferative diabetic retinopathy. Dr. J. S. Guha (OP-3) conducted a surgery “Pars Plana Virectomy with membrane peeling with dissection, endo laser, fluid air exchange with Silicon oil injection. The post-operative recovery was smooth. Complainant, who was suffering from absolutely nil vision before surgery, got his vision corrected, after surgery, which was 6/60, in left eye. As the Complainant was extremely satisfied with the care and results, he requested the OP-3 to conduct surgery on his right eye, which was already advised to him by other doctors, including Dr. Shroff and Shankar Nethralaya. Accordingly, OP-3 performed surgery on his right eye, on 17.01.2001. The OP-2 Dr. Vivek Pal, who is a Cataract and Phaco Surgery specialist removed cataract of Rt. eye and performed Phacoemulsification with +17.5 DP/C IOL, along with Pars Plana Virectomy (PPV) with membrane peeling with dissection , endo laser, fluid air exchange with Silicon oil injection and encircle for tractional retinal detachment. Also, OP-2 removed the cataract, from left eye on 10.04.2001. All surgeries were successful, and complainant gained vision of 6/60 in Left eye and vision in Right eye at extent of counting of fingers.
(iv) Thereafter, the complainant developed complications, like raised intraocular pressure, but the OPs contended that none of those complications were on account of the surgeries performed by them but was as a result of diabetic retinopathy being self- progressive in nature. The Retina Foundation, Ahmedabad, suggested that the Complainant be kept under observation without any surgical intervention. This non-surgical approach was naturally with regard to his retinal disease/oil removal. On 09.08.2001, as the Complainant developed increased intra ocular pressure (IOP) in the left eye, due to recurrent Partial Iris Bombe, Peripheral Iridectomy by Yag Laser (Yag P) was done on left eye, which controlled the intra ocular pressure. Thereafter, his IOP was again found to be elevated, on 17.10.2001 and the Complainant was prescribed medicines to bring the pressure to the normal level. OP did not charge any expenses from the Complainant for this surgery at his request. Unfortunately, however, he developed a fresh membrane in his left eye, on account of high diabetes.
(v) The Complainant insisted for the removal of silicon oil, which in the opinion of the OPs was not feasible in his case as the raised intraocular pressure of the Complainant was not because of the Silicon oil, but it was on account of high diabetes. As the Complainant had developed the membrane on retinal surface, despite the silicon oil being in place, the OPs were of definite opinion that the removal of silicon oil, at this stage, may require a separate surgery of injecting the silicon oil again to prevent the diabetic complication.
(vi) Meanwhile, on 17.10.2001, the Complainant asked for his medical reports which were sent to him. The Complainant sent a frivolous notice making reckless allegations. But, again, the Complainant came to the OPs, on 08.11.2001 and he apologized for having sent a frivolous notice and had requested OP to examine his eye. On examination of OP, it was noted that Complainant was having markedly high pressure in his left eye i.e. ‘secondary glaucoma’. It was also noticed that the medicines which were prescribed to him, on 17.10.2001, were not taken by him, which had further caused complications in his case. Another surgery was performed, on 19.11.2001, after explaining him the limitations of the surgery. The surgery was totally free of cost and nothing was charged, at his request.
Discussion:
11. We have perused the evidence on record adduced by both the parties and several documents on file, like the medical records, referral letters and medical bills, etc. The Learned Counsel, Shri Manoranjan Sinha for the Complainant and learned Counsel Smt. Anu Narula, on behalf of Opposite parties, advanced their respective arguments. We have heard their exhaustive arguments, at length, for 4 days.
12. We have noted that the complainant died during pendency of this case, accordingly, the legal heirs were brought on record.
13. We have perused following Exhibits furnished by complainant :
· Annexure 1 – is a reference letter to Dr. Lingam Gopal, Consultant Vitrio Retina Services at Medical Research Foundation, Chennai (in short MRF, Chennai), which clearly goes to reveal that it was a letter of reference, seeking advice and mode of further management in this case.
· Annexure 2- the Schedule issued by Medical Research Foundation, Chennai, which reveal the waitlisted status of complainant.
· Annexure -3 is the letter issued by MRF, Chennai to the patient- Complainant, Babulal Gupta, dated 30/11/2000 which clearly stated:-
“The undersigned has since examined your eyes and the condition requires surgical procedures namely Vitrectomy + Belt Buckling + Membrane pealing. However, as there is a backlog of appointments for the surgery we find ourselves unable to give you an immediate surgery date;
x……x…. x
We wish to apprise you of the fact that in view of the inevitable and unavoidable delay that may ensure in giving you the you the surgery appointment, as a result of the heavy backlog of cases, there may be a possibility of complications, developing in your eye condition during the period of waiting list. . We advise you to seek alternative medical facility elsewhere.”
· We have perused three Case Summaries issued by MRF, Chennai, which are marked as Exhibits Annexures 5,7 and 9.
The Case Summary dated 3/2/2001 (Annexure 5) revealed that the left eye showed inferior vitreous haemorrhage; marks of Laser photocoagulation. The ultrasound examination of right eye showed the peripaillary tractional retinal detachment, along with incomplete posterior vitreous detachment, along with incomplete posterior vitreous detachment. It was advised for vitrectomy + belt buckling + membrane pealing + silicon oil injection and endolaser for the right eyes. The guarded surgical visual prognosis was explained to the complainant. Regarding the left eye, it was decided that in case the haem absorbed spontaneously, he can have laser in the left eye. The patient did not report for the surgery in the right eye.
· On further perusal of Annexure 7, the Case Summary dated 6/8/2001 mentioned that ; complainant had a visual acuity of 3/36 in the right eye and hand movements close to face in the left eye. Anterior segment revealed posterior chamber intraocular lens in both the eyes. Applanation tension was 14 mm of Hg in both the eyes. Fundus of the right eye revealed clear media, attacked retina, pale disc and peripheral laser marks. The left eye fundus revealed grossly disorganised retinal detachment which is not amenable for further surgery. The right eye would need silicone oil removal.
· On further perusal of Annexure 9, the Case Summary dated 10/10/2001 part of it is narrated as follows: “ This is in continuation of the previous case summary dated 06.08.2001, Mr. Babu Lal Gupta (our MRD No. 474380) was examined here on 06/10/2001 for removal of silicone oil in the left eye, as advised before.
x………x………x
Considering the new findings, we did not advise silicone oil removal now because his intraocular pressure was well within normal limits and there was no evidence of any corneal complications either. However, if the patient develops high intraocular pressure or corneal complications, he would require silicone oil removal with guarded prognosis.” It is signed by Dr.Pratik Ranjan Sen at MRF,Chennai.
· The exhibit Annexure 11 - letter from Dr. Kamal Nagpal of Eye Research Centre and Retina Foundation,Ahemedabad dated 14/6/2001 advised the patient as: RE: Review after 6 months, and LE: Guarded visual prognosis explained and no active treatment advised.
· The Annexure -12, a certificate dated 29/1/2002 issued by Dr. Rajendra Prasad Centre for Ophthalmic Sciences, AIIMS, New Delhi stating that the complaint suffers from 100% visual handicap.
14. We have perused the referral letters/ email communications made by the OP-3 to Dr. Lingam Gopal and Dr. Pran Nagpal to discuss the problem and modalities of treatment of complainant’s eyes. The reply emails (Ex R-2A) dated 16/4/2004 from Dr. Lingam Gopal and from Dr. Pran Nagpal of Retina Foundation, Ahmedabad on 22/4/2004 (Ex R-2B) to Dr Jayant Guha clarifies the reality in this case.
15. The email message Ex R-2 A is reproduced as follows:
Dear Mr. Guha,
Thank you for your e-mail dated 16th April, 2004, asking me to specifically advise whether the surgery to be done in the left eye or the right eye first. The decision to perform the surgery in one eye or the other is based upon many factors including the condition of the eye, rapidity of duration and the chances of salvaging the eye with surgery.
I understand from your report that the left eye has recurrent vitreous haemorrhage and the vision has dropped from 6/36 to finger counting close to face. Hence, the surgery in either of the eyes could be performed since the surgery was required in both eyes at the stage when the vision in the left was also poor. Whether the surgery would be successful or could result in problems obviously could not be anticipated before the surgery. Probably this has nothing to do with which eye to be operated first or later.
Thanking you,
Yours sincerely,
Dr. Lingam Gopal
16. The email message Ex R-2 B is reproduced as follows:
Dear Jayanto,
Thanks for asking me to indulge in commenting upon your decision regarding your patient of Proliferative Diabetic Retinopathy BE and with vitreous Haemorrhage LE and TRD RE. I think your decision to operate the LE is quite justified. Early virectomy done in a vitreous Haemorrhage always gives a better chance to stabilise and recover more vision. Moreover virectomy creates an artificial PVD which is ideal situation to prevent recurrence of bleeding. This fact is borne by the multicentre DRVS (Diabetic Retinopathy Virectomy Study) and by the opinion of Dr. Z. Gregor of Moorefield Eye Hospital, London.
I have also gone through our case summary of the same patient (Mr. B.L. Gupta, our Reg. No. 2001/6/1495). We have not advised anything active now that the IOP is ok and there is no other complication of Silicon Oil. Moreover, with all that sub retinal and sub silicone oil proliferation and the consecutive optic atrophic change, the expectation of any useful vision is less. There is a possibility that the removal of Silicone Oil may trigger the extension forward of the proliferations and endanger the state of the eye. Probably your decision not to remove the oil was guided by these factors and so you did the right thing when you decided not to remove the silicon oil.
Regards,
Pran Nagpal
17. Now the points for our consideration, to decide this case are:-
i) Whether the Complainant has proved the deficiency in service, on the part of opposite parties?
ii) Whether OPs acts show elements of negligence?
iii)Whether the Complainant deserves for relief, as prayed?
The findings to above points are:
i) In the Negative
ii) In the Negative
iii) As per following reasons ;
Reasons:
18. It is an admitted fact that Complainant was a known diabetic patient for past 3 decades and was under treatment for the same. Complainant consulted the OP for the complications / complaints in his eyes ; the OP diagnosed him as a case of PDR with bilateral posterior polar cataract and advised treatment accordingly.
19. Perusal of Annexures 5, 7 and 9 clearly show that the Complainant was suffering from advanced ocular complications of Diabetes mellitus. The OPs- 2 and 3 are qualified and competent to treat such complications, and they have treated the Complainant, with due diligence, as per standards of Ophthalmic Practice. It is pertinent to note that OP sought opinions from the Experts, Dr. Lingam Gopal and Dr. Dr. Kamal Nagpal who were specialists in the same field, for further management. The higher centres like Shankar Netralaya, Chennai and Eye Research Centre and Retina Foundation, Ahmedabad, are well known reference centres, having international repute.
20. The main question which swirls around in this case is that “Why was the complainant subjected to multiple operations, on his eyes and the reason for his frequent references. It is important to note that the Complainant was, at first instance, on 30/11/2000, examined by Sankara Netralaya, Chennai, which confirmed the severity of eye condition of the complaint . Due to heavy backlog at Shankar Netralaya, they advised the patient to seek other alternative centre, for his treatment, to avoid complications, due to delay. Therefore, complainant approached OP again, for further treatment. The OPs have treated him, as per the signs and symptoms of the case. We do not find an iota of negligence in the mode of treatment given by OPs. The OPs referred the complainant to higher Institutes at Chennai and Ahmedabad to seek opinion and to follow the treatment as advised . It is evident from record that OP-3 consulted the Experts, like Dr. Lingam Gopal and Dr. Pran Nagpal to ascertain the correctness of his treatment on the complainant. The replies emails, Ex. R-2 A and Ex.R-2 B clearly establish the correctness of mode of treatment adopted by OPs.
21. To know more about the Ocular Complications of Diabetes and modalities of treatment in case of PDR, Cataract etc. , reliance was placed upon several Standard Medical Books, like Harrison’s Internal Medicine, Ophthalmology, 4th Edition by Myron Yanoff , Jay Duker and Duke-Elder's System of Ophthalmology . It is known that due to prolonged diabetes patient ( chronic) even if under control will have tendency to develop complications like Diabetic Nephropathy, Neuropathy, Retinopathy. The complainant herein was a juvenile diabetes patient for 30 years and unfortunately developed such ocular (eye) lesions which subsequently lead to complete loss of vision. We cannot correlate or agree with the allegations of complainant that such loss of vision was due to multiple surgeries performed by the OP.
22. It appears to be a case of breach of conduct between the Doctor-Patient relationship. After consultation with Sankara Netralaya which expressed its inability to accommodate complainant for surgery due to heavy waitlist, the complainant preferred to take treatment from the OP to avoid further eye complications, during delay period. But, he also had an option to approach another Ophthalmologist, in his city.
23. We do not agree to the allegations of Complainant that OPs did not follow instructions of referral centres, but in our opinion, the OPs treated the complainant, as per the progression of disease. It is the treating doctor, who can decide and judge the line of treatment, after due examination of patient. He could choose any different line of treatment, which is accepted by the medical authority. Even we appreciate the attempts of OPs who referred the complainant to higher Institutes at Chennai and Ahmedabad, to seek opinion and further line of treatment. Also, the OP-3, through email (Ex R-2 B) consulted the Experts, like Dr. Lingam Gopal and Dr. Pran Nagpal to ascertain the correctness of his treatment given to the complainant. The Experts replies through emails Ex. R-2 A and Ex.R-2 B, clearly establish the correctness of mode of treatment adopted by OPs.
24. In the instant case, had the OP avoided the treatment of complainant for Vitreous Haemorrhages, it would have led to several other ocular complications. Therefore, we do not find that OPs had deviated from any Standard of Medical (ophthalmic) Practice.
Since the present case is based upon an allegation of deviation from ordinary professional practice, it is worth to quote the Scottish case Hunter v Hanley1955 SC 200 in which Lord President Clyde, held:-
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."
He also laid down the following requirements to be established by the patient to fasten liability in case of negligence committed by a doctor:
"To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course, the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on the pursuer to establish these three facts, and without all three, his case will fail."
25. What constitutes Medical Negligence, has been discussed in several rulings of the Hon’ble Supreme Court of India and by this Commission, The Hon’ble Supreme Court in Jacob Mathew V State of Punjab & Anr, (2005) 6 SSC 1= III (2005) CPJ 9 (SC) had concluded that,
“ a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.”
26. In the Bolam’s case (Bolam Vs. Frien Hospital Management Committee (1957) 1 WLR 582 it was also held that a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view. Essentially three principles are applied to decide negligence of doctor;
(i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time;
(ii) Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field.
(iii) Whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated.
In the present case our answer to all points is ‘YES’, because both the OP doctors are qualified Ophthalmologists, practicing since 2 decades. The OP-2 is a Super Specialist in IOL and Myopia Corrective surgery. The OP-3 is a Consultant Retina Surgeon attached to OP-1, the Navajyoti Eye Centre. They have adopted the standards of practice, in proper diagnosis, referral and further management. Therefore, in the instant case OP-2 and 3 are qualified and skilled in their speciality , hence, no negligence can be attributed to their attempts.
27. In Achutrao Haribhau Khodwa vs. State of Maharastra - 1996 (2) SCC 634, Hon’ble Supreme Court held :
"The skill of medical practitioners differs from doctor to doctor. The 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. In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable."
28. In the case of Kusum Sharma Vs. Batra Hospital(2010 CPJ) discussed several principles to decide negligence have been laid down, the relevant Para is reproduced as:
“ xi. 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”.
29. Applying all the above principles to this instant case, we are convinced that there is no medical negligence – admittedly, the OPs are qualified doctors and they have used their best professional judgment at the time of treating the Diabetic Complications in the both eyes of complainant. The loss of vision was due to severity Proliferative Diabetic Retinopathy and not due to the mode of treatment or surgeries conducted by OP. We are also of considered view that Referral is not abandonment. Referring a patient is not a case of abandonment or negligence. Although referrals generally improve the quality and care to the patients, it sometimes happens that a patient claims injury while under treatment. A doctor cannot be charged against patient abandonment if he or she refers the patient to another physician. Healthcare providers are bound by a code of ethics that states that a professional, who begins treating a patient’s illness willingly, should complete the treatment to the best of his or her ability. Healthcare professionals should not stop treatment, unless they are not able to treat the patient correctly or if they disagree with the patient about the way in which treatment is being administered.
30. Hence, we do not find that the OPs have deviated from Standards of Medical Practice during entire treatment of the complainant. Accordingly, we dismiss the complaint. No order as to costs.
…..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
…..…………………………
(Dr. S. M. KANTIKAR)
MEMBER
Mss/25
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