BHUPENDRA NATH DAS vs MAHARAJ RAMKRISHNA MISSION SEVA PRATISTHAN

THIS is a complaint of medical negligence filed by one Bhupendra Nath Das under Section 17 of the Consumer Protection Act, 1986. The petitioner''s case is that he is an Engineer posted in a high rank in the Government Department as well as in the Calcutta Municipal Corporation at Calcutta, feeling some trouble in his right eye the petitioner contacted Ramkrishna Seva Pratisthan, 99, Sarat Bose Road, Calcutta-700026 and on the doctor''s advice he was admitted there on 2.8.1993 for cataract operation under the treatment of Dr. M.M. Patra. Dr. Patra performed an operation on the right eye of the petitioner on 3.8.1993 and he was discharged from the Seva Pratisthan on 8.8.1993. It has been alleged that pursuant to the advice of Dr. Patra the petitioner attended the Eye O.P.D. of the Ramkrishna Seva Pratisthan regularly but the operated eye was not cured. The petitioner was thereafter advised the second operation by Dr. Patra with the assurance that the ailment of his right eye will be completely cured after the second operation. So the petitioner was admitted again in the Seva Pratisthan on 17.8.1993 and the second operation was made on his eye. He was discharged from the Seva Pratisthan on 8.9.1993. The petitioner has complained that the black portion of his right eye ball became completely white immediately after the second operation and he felt acute pain in his operated eye. Getting no relief even by the second operation the petitioner reported the fact to Dr. Ranabir Mukherjee of Eye Care and Research Centre, Biplabi Niketan at 12-A Dr. Bimal Guha Street, Calcutta-17 who after examining the right eye ball of the petitioner opined that due to infection the right eye ball of the petitioner was affected and there was septic in the right eye pupil. The petitioner was thereafter advised by Dr. Ranabir Mukherjee to remove his eye ball to avoid further complications of the left eye. Being so advised by Dr. Mukherjee the petitioner was admitted to his Clinic and his right eye ball was removed by Dr. Mukherjee. The petitioner''s allegation is that two successive operations performed by Dr. Patra were done in a negligent way and there was prescription of wrong medicines and there was septic in his eye on account of unhygienic instruments used during the operation. The petitioner alleges to have suffered mentally and physically by the negligent eye treatment made by the Seva Pratisthan and Dr. Patra. He, therefore, has claimed a compensation of Rs. 5,20,000/- (Five Lakhs Twenty Thousand Only) as per details given in the petition of complaint.

THE case is contested by both the Ramkrishna Seva Pratisthan and Dr. M.M. Patra. THE Seva Pratisthan is represented by the Secretary of the Pratisthan as opposite party No. 1 and Dr. Patra is opposite party No. 2. Both the opposite parties have filed a written objection denying the allegations of the petitioner. According to them the petitioner attended the O.P.D. of the Pratisthan on 2.7.1993 for the ailment in his right eye and checked by Dr. M.M. Patra and as the petitioner was having a complaint of flat cataract on his right eye the requisite investigations were done as per advice of Dr. Patra and ultimately he was advised admission in the Pratisthan on 12.7.1993. THE petitioner got himself admitted in the Pratisthan on 2.8.1997 and on 3.8.1993 his right eye was operated by Dr. Patra successively. THE petitioner was discharged on 8.8.1993 without any problem from the Hospital and with proper post-operative advice. THE opposite parties deny the allegation of negligence in operation in the eye of the petitioner and assert that the petitioner was completely well even after the operation on 3.8.1993 and had no complications till 8.8.1993. It has been alleged by opposite parties that fungal infection was found in his eye which developed during his stay at home and that this was detected on 16.8.1993 when the petitioner attended the O.P.D. of the Seva Pratisthan. According to the opposite parties the fungal infection occurred during the dressing and handling of the eye of the petitioner at home. It is apprehended that the dressing materials were not properly sterilized and the person doing the dressing of the petitioner at home did not clean his hands properly at the time of the dressing. However, the patient was advised a second operation as no medicine could restrict the infection, but unfortunately the chances of recovery from fungal infection were very less and this was conveyed to the petitioner at the time of discharge after the second operation. THE opposite parties strongly deny any negligence in the matter of treatment or operation of the petitioner and they have asserted that during his stay in the Hospital the petitioner did not make any allegation of pain in his operated eye. The point for determination is if there was any deficiency in medical service rendered to the petitioner by the opposite parties causing damage to his right eye and if so if he is entitled to the damages claimed by him. FINDINGS

The allegations of the complainant and the defence of opposite parties have been stated in details. Admittedly the petitioner was operated in his right eye in the Ramkrishna Mission Seva Pratisthan by opposite party No. 2. After the first operation he was released after five days with the requisite post operation advice. The effect of the first operation has, however, been disputed by the complainant but this allegation has been denied by the opposite parties. According to Dr. M.M. Patra who performed the operation it was successful, but on the date of reporting it was found that there was fungal infection in the affected eye which according to him was due to the negligent dressing at home. Both parties had adduced oral evidence and documentary evidence was also adduced. But there were only allegations and counter-allegations.

OPERATION of eye is to be performed very cautiously as this is the most precious limb of the human body. A negligent operation in this organ may ruin a man''s life. In this case the patient was discharged after the first operation after five days. The reaction of the patient at the time of the release is not known. The patient, however, alleges now that his first operation was defective and he submitted to a second operation to remove the defect. But the second operation was also not successful and he ultimately consulted Dr. Ranabir Mukherjee who advised him to remove the eye ball. The petitioner has subsequently alleged that Dr. Patra wrongly prescribed medicine for tuberculosis which has affected his eye. Excerpts from legal books have also been filed to stress on the technical side of the treatment, but in our estimation the same cannot be properly elucidated without the deposition of a technical expert. Opposite party No. 2, Dr. M.M. Patra, however, defends his prescription and deposes that anti-tuberculous treatment was given alongwith anti-bactrinal and anti-gungel treatment. It should be noted that this deposition has not been challenged by cross-examination to elicit the true effect of the medicine.

SIGNIFICANTLY Dr. Ranabir Mukherjee who subsequently treated the complainant was also cross-examined by both the parties. No doubt he was a competent doctor to comment on the quality and property of the operation. But his deposition does not categorically support the complainant''s allegation. He says that when he examined the eye of the complainant he found that it was infected after the operation. He declined to comment on the propriety of the medicines prescribed by Dr. Patra and his comment was that the drugs were prescribed as the Doctor thought that those drugs would be required for the treatment. He admitted that before release a patient is examined by the doctor. He also stated in cross-examination that all investigations were done before the operation and there was no contra-indication to surgery. The Eye Care and Research Centre where the complainant had undergone the third operation had given a report which was signed by Dr. Ranabir Mukherjee. It gave the case summary and recorded the diagnosis of the patient as follows: "The patient was diagnosed as Panophthalmitis right eye and was advised evisceration. He subsequently underwent surgery at our Centre on 24.9.1993 under local anaesthesia. He was advised an artificial cosmetic shell in the right eye after regular post operative checkups and suture removal."

Besides the above there are the oral evidences of the complainant and his wife. But they hardly help to come to a precise decision if there was a medical negligence in this case. Every operation has its accompanying risks. The risk may manifest at the time of operation or it may involve post operation hazard. We have already observed that eye operation should be performed with extra care as a negligent operation may vitally ruin a person''s life. But the inherent risk is always there so that an operation is always preceded by a risk bond signed by a competent person.

ADMITTEDLY complications were noticed in the operated eye of the complainant when he visited the doctors for the second time after operation. The doctor''s version is that he found infection in the operated eye which was not there when he was released from the first operation. In the absence of any positive evidence about the condition of the eye at the time of the first release we shall have to depend on the discharge certificate. The general medical practice is not to release a patient until he is reasonably cured to merit a discharge, unless, of course, the release is on a risk bond. If the operation was done with reasonable care but any after-effect is subsequently noticed either due to the absence of proper care or for any other reason, the doctor cannot be held guilty. The duties of a doctor when he undertakes the treatment of a patient have been described by the Supreme Court in Lakshan Joshi v. Dr. Trimbak (rep.in AIR 1969 SC 128) in the following words : "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, namely, 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 petitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care."

Here the decision of the doctor to operate the affected eye has not been challenged. According to the doctor the operation was successful but the patient got an infection outside the Hospital. He tried to cure the defect by a subsequent operation, but the defect could not be removed. Can it be said that his negligence has been proved ?

THE complainant has subsequently raised a point that there was a wrong treatment by prescribing tuberculous medicine. It may be noted that this allegation was not made in the original petition of complaint. Further the point has not been tested by an expert. Production of copies from medical books is not enough to prove an allegation of negligence in such a case. Judging from all possible aspects of the case we come to the conclusion that the medical negligence brought against the doctor has not been proved in this case. A question may be raised why the patient was released for the second time when his disease was not cured. The doctor has explained his position by stating that according to him the infection in question could not be cured by detaining him in the Hospital. Therefore, the allegation of deficiency in medical service fails.

As against opposite party No. 1 also no specific negligence has been proved. It has not been proved that the infection was caused for any negligence on the part of any nursing staff or other employee of the hospital. So opposite party No. 1 is also found not liable for any deficiency in service.

THE case is, therefore, dismissed on contest against both the opposite parties but without any cost. Complaint dismissed.