B K Pani Alias Binay Kumar Pani vs SUNDRI DEVI

DR. B.K. Pani, hereinafter referred to as Petitioner, has filed the present Revision Petition being aggrieved by the order of the State Consumer Disputes Redressal Commission, Jharkhand which accepted the appeal of Smt. Sundri Devi, hereinafter referred to as the Respondent.

THE facts of the case according to the Respondent/Complainant before the District Forum was that she was having problem in her left eye since 1995 and was under the treatment of one Dr. I.M. Prasad at Jamshedpur from 1995 till 1997. She was thereafter advised to consult the petitioner Dr. D.K. Pani who is an eye specialist/surgeon in ocular micro surgery in Jamshedpur. Respondent, thereafter, consulted the Petitioner in January, 1998 with relevant documents including the prescriptions of Dr. I.M. Prasad and also explaining that she had experienced diminishing of vision and regular flow of water in her left eye. The Petitioner advised the Complainant to have an immediate operation through micro surgery and assured her that following this operation her vision will be restored within one week. The Complainant accordingly reported for the operation on 6.1.1998 at 1 p.m., after having paid the requisite fees of Rs. 6,000 and at 1.30 p.m. on the same day she was operated upon without the Petitioner having conducted any pathological tests prior to the surgery. A few days after the surgery complications developed in her left eye and her vision also remained diminished. On the Respondent''s request Petitioner referred her to Shankar Netralaya, Chennai for advice and further treatment. The doctors at Shankar Netralaya advised immediate removal of lens as it showed total retinal detachment. Infection had also developed in both her eyes. It was also opined that no further corrective surgery was possible. Thereafter the patient went to seek another opinion at the L.P. Eye Instituted Hyderabad who also confirmed that nothing could be done to improve the eye. Respondent contended that the case summary prepared by one Dr. Rajat Agrawal of Shankar Netralaya confirms that pain and loss of vision had developed following the surgery by Dr. Pani. In view of the above facts Respondent filed a Complaint before the District Forum on grounds of medical negligence and deficiency in service and sought Rs. 5 lakh as relief from the Petitioner.

THE Petitioner in his written statement before the Commission has stated that he had conducted over a thousand such operations and no complaints of any negligence or deficiency in service had ever been received. So far as the instant case is concerned Petitioner does not recall having conducted the surgery or any details pertaining to it. He also denied that he could have given any assurance to the patient of 100% success of an operation because no good doctor would give such an assurance.

THE District Forum after hearing both the parties and on the basis of evidence produced before it accepted the complaint relying on the version of the Respondent and the case summary from Shankar Netralaya.

THE District Forum directed the Petitioner to pay compensation of Rs. 1. lakh to the Complainant within one month from the date of receipt of copy of order for the mental and physical harassment and financial loss suffered by the Respondent due to loss of vision in her left eye.

AGGRIEVED by this Order Petitioner filed an appeal before the State Commission. The Respondent also filed an appeal in the State Commission seeking enhancement of the compensation. The State Commission dismissed both the appeals and upheld the order of the District Forum regarding payment of Rs. 1.5 lakh by the Petitioner to the Respondent. The relevant part of the order of the State Commission in support of its conclusions is reproduced: "Having regard to the rival contentions, we have perused the materials available on record including the findings recorded by the Court below. The submission of the learned Counsel for the appellant that cataract operation was performed without necessary pathological tests cannot be rejected outright but the same has to be considered with reference to the materials available on record as well as the circumstantial evidence. Admittedly, the patient was brought and admitted on 6.1.1998 at 1 p.m. and immediately on the same day at 1.30 p.m. she was operated which goes to show that the respondent doctor without having relevant pathological tests has conducted the operation. Even assuming for a moment that the documents including the tests conducted on the victim was taken away to Shankar Netralaya does not conclusively prove that such tests were conducted before cataract operation on 6.1.1998 at 1.30 p.m. It may be mentioned here that the patient was being treated by one doctor I.M. Prasad right from 1995 to 1997. In course of such treatment, some pathological tests must have been conducted. The victim was operated after a year i.e. in the year 1998. It was incumbent on the part of the operating surgeon to examine the patient pathologically afresh in order to ascertain whether she is fit for such operation particularly when she was suffering from blood pressure. The other aspect of the matter is that since the plantation of lens in the left eye on the day of operation, she developed pain and loss of vision. It was found by Shankar Netralaya that left eye of the victim had total retinal detachment resulting immediate removal of the lens which also demonstrates that the lens was implanted without proper care. It has been universally accepted fact that before conducting any operation including such cataract operation, flow of water must be stopped otherwise it will develop infection which may prove fatal. The respondent doctor has himself admitted that for treatment of flow of water at least 10 days (ten) time is required. In the instant case, it has conclusively been proved that without taking any steps for stoppage of flow of water, the operation was performed which, in fact, caused infection not only in the left eye but also to the right eye Mere stating that the doctor has not been informed regarding flow of water from the eye. will not exonerate him from the charge of negligence and deficiency while conducting operation. It has been repeatedly held in a series of decisions by this Commission as well as National Commission to the effect that pre-operative diagnostic examination is mandatory before performing operation and if the doctor performed the operation without such examination, this will undoubtedly amount to medical negligence. Hence the present revision petition.

WHEN the case came up for hearing before this Commission, the Bench vide its Order dated 21.7.2009 noted that since there was no expert evidence produced in the case, in order to enable the Court to come to a correct conclusion it would like to have the opinion of Rajendra Prasad Institute of Ophthalmology (All India Institute of Medical Sciences.) The Director of the said Institute was, therefore, requested to constitute a Board to find out as to whether there was medical negligence on the part of the Petitioner in performing the eye operation on the Respondent. The report from the said Institute has since been received.

LEARNED Counsel for both the parties made oral submissions. Learned Counsel for the Petitioner stated that the Fora below erred in concluding that there was medical negligence and deficiency in service on the part of the Petitioner. In fact it is not correct that the surgery was conducted in haste without the required pathological tests. All precautions were taken and tests conducted. Unfortunately, these test results were not available with the Petitioner since these were taken away by the Respondent when her case was referred to Shankar Netralaya. Further the Courts below failed to appreciate that the Petitioner after the operation advised Respondent to come back next day for post-operative care advice which she failed to do. She only appeared when complications had arisen perhaps because she did not take the medicines as per prescriptions or advice. Regarding the case summary prepared by Dr. Rajat Agarwal of Shankar Netralaya, Counsel for the Petitioner contended that nowhere does it pin point the cause of the retinal failure of the patient or find the Petitioner guilty of medical negligence. Further Dr. Rajat Agarwal was also not produced as a witness to depose in the Court.

COUNSEL for the Respondent on the other hand reiterated that there was credible evidence before the Fora below that the operation was done in haste without the required post operative diagnostic/pathological tests because of this and due to negligence and lack of proper post operative care the patient lost vision in her left eye. The learned Fora below had rightly concluded that there was medical negligence and deficiency in service for which the Respondent was compensated. The present revision petition, therefore, deserves to be dismissed.

WE have considered the oral submissions made by the learned Counsel and also the evidence on record. Respondent''s contention is that the Petitioner did not conduct the required pathological tests prior to the surgery, it is a well-established fact that it is necessary to inter alia check the status of the heart, blood pressure and blood sugar apart from other parameters before conducting an operation of this nature. Petitioner has not been able to produce any record or evidence to controvert this allegation. In fact he does not even recall having conducted the surgery and later his Counsel taking the plea that the records were taken away by the Respondents to Shankar Netralaya, does not inspire confidence. It has also not been denied that the surgery was conducted within half an hour of the patient presenting herself for the same. The Petitioner in his cross-examination before the District Forum has admitted that in case of flow of water from the eye, surgery would be contraindicated unless it is properly investigated. He has also admitted during cross-examination that unless flow of tears is arrested in the eye there is every chance of infection. Petitioner''s contention subsequently that the patient did not inform him of this problem is no defence because if the doctor had carefully examined the patient including the status of the eye before the surgery he would have undoubtedly detected this problem. We have also gone through the case history of the doctor from Shankar Netralaya. While it is a fact that it has not specifically been stated that there was any medical negligence per se on the part of the Petitioner it is clearly mentioned that it was following the surgery that the Respondent developed pain and loss of vision in the left eye and there was no other significant history. It is also a fact that the interocular lens inserted by the Petitioner had to be removed at Shankar Netralaya. Unfortunately, by that time the damage to the left eye was irreparable. It is note-worthy that the expert opinion from the All India Institute of Medical Sciences specifically mentions that while Dr. I.M. Prasad and the consultants at Shankar Netralaya had kept meticulous notes regarding the Respondent''s case no such records were made available by the Petitioner because of which a clear unequivocal opinion could not be given.

TAKING into consideration all the above facts which were carefully examined and evaluated by the Fora below as is evident from their well-reasoned and detailed orders, we see no reason to disagree with their findings pertaining to medical negligence and deficiency in service on the part of the Petitioner. We note with regret that the Petitioner initially did not even remember having conducted the surgery nor did he care to keep the relevant records. Under these circumstances the plea taken later by Petitioner that the problem occurred because the patient did not follow post operation advice inspires no confidence. To sum up, we uphold the order of the Fora below and direct the Petitioner to pay the Respondent a sum of Rs. 1.5 lakh as compensation along with Rs. 5,000 as costs. The Revision Petition is disposed of in the above terms. Revision Petition disposed of.