D RAMA KRISHNA vs K SREE KUMAR REDDY

-THE brief facts as set out in the complaint are that the complainant''s vision in his left eye was not clear and he approached opposite party No. 1 on 29. 11. 1999 for treatment and opposite party No. 1 diagnosed Cataract and advised him to undergo PHACO Emulcification surgery i. e. to remove the Cataract and to arrange the lens. Opposite party No. 1 gave a letter dated 1. 12. 1999 to opposite party No. 3 to admit the complainant in Sadhuram Eye Hospital on 3. 12. 1999. The complainant was admitted in the hospital of opposite party No. 3 on 3. 12. 1999. Opposite party No. 1 without proper evaluation of the case commenced the surgery at about 9. 00 a. m. in a hurried manner in opposite party No. 3 hospital by administering local anaesthesia and all of a sudden he stopped surgery and informed the complainant that there is a mechanical defect in the machinery and he will continue the surgery after getting the machine repaired. The complainant submits that opposite party No. 1 committed mistake while doing PHACO and that since only local anaesthesia was administered, he heard their discussions that by mistake the lens was dislocated and dropped on the retina and the opposite parties had to call Posterior Segment Surgeon who was not available in the hospital at that point of time. Opposite party No. 1 leaving the complainant in the middle of the operation rushed to opposite party No. 2 and both opposite pary Nos. 1 and 2 together after a lapse of 2 hours attended to the complainant and commenced the operation. The complainant submits that he could hear discussions of opposite parties 1 and 2 that the lens was broken into pieces and opposite party No. 2 tried to remove the broken pieces from the posterior capsule. While so, the vitreous chamber was punctured and the vitreous fluid poured out of the eye and caused retinal detachment with giant retinal tear. Opposite parties 1 and 2 tried to fish out the broken pieces for about four hours but in vain. Opposite party No. 3 collected an amount of Rs. 2,050 only since the operation was not successful. The complainant was discharged on 4. 12. 1999 and in the Discharge Slip issued by the opposite parties, it was mentioned by opposite party No. 3 that the PHACO converted into ECCR, vitrectomy Acid C/r etc. The complainant on the advice of the opposite parties to come for review approached opposite party No. 3 on several occasions and ultimately on 21. 12. 1999 the complainant was advised to approach Dr. Tara Prasad Das, Chief Retinal Surgeon, L. V. Prasad Eye Institute, Hyderabad. Opposite party No. 2 wrote a letter to the Chief Retinal Surgeon dated 21. 12. 1999 admitting that opposite party No. 1 while doing PHACO there was P. C rent and total cataract lens dislocated on the retina. On 3. 1. 2000, the complainant approached L. V. Prasad Eye Institute and underwent BELT BUCKLING, PARSPLANA VITRECTOMY MEMBRANE PEELING, PERFLOURO CARBON LIQUID INJECTION, SILICON OIL INJECTION AND ENDO LASER for the left eye on 4. 1. 2000 and was discharged on 5. 1. 2000 and the complainant was advised to take complete rest for a period of two months from the date of operation. The complainant paid an amount of Rs. 28,000 to L. V. Prasad Eye Institute for the treatment apart from medical expenses. On 16. 2. 2000 the Retinal Surgeon, Dr. T. P. Das advised the complainant to undergo further surgery, but for some reason the surgery was not taken place. On 10. 7. 2000, he was advised that further surgery for the left eye would not benefit much and therefore, he was asked to come for review every three months. On 21. 7. 2000, the complainant approached Shankar Netyralaya Medical Research Foundation at Chennai and Dr. Rajath Agarwal examined him and found that the left eye had total corneal haze. He was not advised any surgical intervention for the left eye considering that he had multiple surgeries done. He was advised cosmetic contact lens for the eye and regular follow up every month. The complainant admits that he sustained heavy loss and the complainant''s left eye turned white. He got issued a legal notice on 14. 8. 2001 to pay a sum of Rs. 14,80,000 towards compensation for mental agony, disfigurement and loss in the profession, etc. and he received a reply on 30. 8. 2001 with all false allegations. Hence, this complaint seeking compensation of Rs. 14,80,000 together with costs of Rs. 5,000 and other reliefs.

OPPOSITE parties 1 and 2 filed their counter. Opposite parties 1 and 2 in their counter submitted that the complainant consulted opposite party No. 1 on 29. 11. 1999 and was diagnosed as having cataract in his right eye and after initial check up advised him for cataract operation and explained all the aspects of the surgery. After the complainant agreed, he advised him to get himself admitted in opposite party No. 3 hospital. The operation was fixed for 3. 12. 1999 and the complainant got himself admitted on the same day and the opposite parties 1 and 2 denied that no proper investigations were done prior to the operation. Dropped nucleus is a known occurrence during cataract surgery even in the most experienced hands and denied that the Posterior Segment Surgeon was not available at that point of time. They submitted that he is a super specialist who attended to the patient in about an hour on the request of opposite party No. 1. Opposite party No. 1 denies that the complainant was left half way through the surgery and he returned after two hours. He denies that the vitreous chamber was damaged but in fact a three port parsplana vitrectomy was done and dropped nucleus was removed and this procedure can be done on the same day or the next day or even after a week''s time. Opposite parties 1 and 2 submitted that they did their best in discharging their duties and no negligence can be attributed to them. It was only in the interest of the patient that he was referred to Dr. Tara Prasad Das, Chief Retinal Surgeon of L. V. Prasad Eye Institute when opposite parties detected retinal tear and detachment during subsequent post-operative follow up. He further contended that L. V. Prasad Eye Institute should have been made a party to the case and that the complainant had gone to Shankar Netralaya on his own accord for which opposite parties 1 and 2 cannot be made liable and that they contend that there is no negligence on their behalf. Opposite party No. 3 filed counter stating that their hospital has nine doctors, who are known as Junior Opthalmic Surgeons. There are Honorary Consulting Opthalmic Surgeons, who are not on the pay rolls of opposite party No. 3. The complainant has given a consent to opposite party No. 3 for conducting the eye examination stating that he will not hold the management of the hospital liable for any untoward problem. It was only after the consent letter was taken that the procedure had begun. The complainant only to enrich himself has filed this complaint.

The complainant filed his affidavit by way of evidence and Exs. A. 1 to A. 41 are marked on his behalf. Opposite parties also filed their affidavits by way of evidence. P. W. 1, R. W. 1 and R. W. 2 deposited before this Commission.

THE brief point for consideration is whether there is any negligence on behalf of opposite parties and if the complainant is entitled to the relief sought for in the complaint? Complainant filed an affidavit by way of evidence reiterating the facts in the complaint. He further submitted that L. V. Prasad Eye Institute need not be made a party since there was no negligence on behalf of their doctors. He further contended that opposite party No. 3 hospital is not Charitable Institution and the complainant in his affidavit of evidence submitted that opposite parties 1 and 2 falsely alleged that they operated in his right eye, when they examined his left eye and operated on the left eye only. Ex. A. 1 is the copy of the legal notice dated 14. 8. 2001 got issued by the complainant to the opposite parties calling upon the opposite parties to pay compensation of Rs. 14,80,000 for the loss of vision in the right eye on account of negligence of opposite parties 1 and 2. Ex. A. 2 is the reply notice got issued on 30. 8. 2001 stating that there is no negligence on behalf of opposite parties. Ex. A. 3 is the receipt for Rs. 2,005 paid to opposite party No. 3. Ex. A. 4 is the discharge ticket. Ex. A. 5 is letter given by opposite party No. 3 to Dr. Tara Prasad Das of L. V. Prasad Eye Institute stating that there was total cataract lens dislocation and to take up the case of the complainant. Ex. A. 6 are medication instructions given by the L. V. Prasad Eye Institute dated 3. 1. 2000. Ex. A. 7 is the letter given by Dr. Tara Prasad Das stating that the complainant underwent belt buckling, pars plana vitrectomy, membrane peeling, perflouro carbon liquid injection, silicone oil injection and endolaser for the left eye on 4. 1. 2000 for which he was admitted on 3. 1. 2000 and was discharged on 5. 1. 2000. Ex. A. 8 is the prescription of the power of the complainant eyes. Ex. A. 9 is the Medical Report given by L. V. Prasad Eye Institute explaining the condition of his left eye. Ex. A. 10 and A. 11 are the payment slips of the complainant dated 29. 3. 2000 and 4. 10. 2000 given by Dr. T. P. Das. Ex. A. 12 is the case summary dated 30. 7. 2001 given by Sankara Netralaya in which it is stated as follows: "the left eye had total corneal haze with no further details. Intraocular pressure was 15 mm of Hg in the right eye and the left eye was unrecordably low. Fundus examination of the right eye with indirect opthalmoscopy and sclera depression was normal. Examination of the left eye was not possible because of corneal haze. Ultrasound examination of the left eye was not done as the patient had silicone oil in that eye. He was not advised any surgical intervention for the left eye considering that he had multiple surgeries done elsewhere with presence of recurrent retinal detachment noted in February 2000 and superior retinal detachment as noted in May 2000. He also had associated total corneal opacity. He was clearly explained prognosis regarding his condition. He was advised cosmetic contact lens for the left eye, which was given to him with clear instructions. He has been told that he requires regular follow up for his right eye every 6 months. "

Ex. A. 13 is the receipt for Rs. 23,380. Ex. A. 14 and A. 15 are for Rs. 650 and Rs. 100. Ex. A. 17 onwards are all cash bills and receipts with respect to the medical expenses incurred by the complainant in L. V. Prasad Eye Institute and Sankara Netralaya. Ex. A. 41 is the Medical Report dated 26. 8. 2003 given by L. V. Prasad Eye Institute stating that he was reviewed on 23rd February, 2000, 5th March, 2000, 12th November, 2002, 27th March, 2002 and 17th February, 2003 and his visual acuity was 20/20p in the right eye and light perception in the left eye. Left eye showed stormal edema and corneal scarring.

THE opposite parties also filed detailed affidavit by way of evidence and reiterated the facts in the counter. Opposite party No. 2 submitted in his affidavit that opposite party No. 1 operated on the complainant on 3. 12. 1999 and requested opposite party No. 2 to come to the hospital for retrieval of nucleus and within an hour he retrieved the dropped nucleus by doing three port parsplana vitrectomy. The procedure done by opposite party No. 2 is world wide accepted and he submits that during subsequent follow up on 21. 12. 1999 it was detected a retinal tear and early retinal detachment. It was detected a retinal tear and early retinal detachment which is a known late occurrence after phaco surgery and dropped nucleus. He also submitted in his affidavit that this procedure is supported by medical literature : (a) Text Book of Modern Ophthalmology of L. C. Dutta Vol. No. 3 page Nos. 1788 to 1792; (b) Cataract Surgery - Techniques and Complications by Steinert - page Nos. 195 to 198; (c) Text Book of Ophthalmology Albert and Jakobiec Vol. III page Nos. 1511 and 1512 under the heading Complications of Phaco Emulcification, (d) Text Book of Modern Ophthalmology by L. C. Dutta Vol. III page No. 1750 under the heading Parsplana Surgery and Its Complications. Both the Cousel submitted their arguments. We have gone through the material on record. It is not in dispute that the complainant was operated upon by opposite party No. 1 in opposite party No. 3 hospital on 3. 12. 1999 for cataract. It is the case of the complainant that the operation was left incomplete midway and since he was administered only local anaesthesia , he heard the doctors discussing that mistake was done and lens was dislocated and dropped on the retinal and the Posterior Segment Surgeon was not present in the hospital during that period of time and thereafter opposite party No. 1 came along with opposite party No. 2 after two hours. Opposite party No. 2 in his counter submitted that he was called by opposite party No. 1 with respect to the complications in the surgery of the complainant and he reached the patient within an hour of the call. It is an admitted fact that dropped nucleus is a known occurrence during PHALCO surgery which had arisen. But opposite parties deny that the vitreous chamber was damaged but infact a three port parsplana vitrectomy was done and the dropped nucleus was removed. It is the case of the opposite parties that this a widely done surgery for dropped nucleus. This is supported by the medical literature filed by them. Opposite party No. 2 submitted that the complainant was given adequate treatment and he was under the medical care of opposite party No. 2 till 21. 12. 1999 during this period there was no complaint whatsoever from the complainant that there was no loss of vision. He submitted that they have taken professional care and caution and contend in their written arguments that even if the complainant was treated by L. V. Prasad Eye Institute there was no report that the complainant had lost his vision. (a) With respect to the delay of one hour in the arrival of the Posterior Segment Surgeon, the medical literature states that the timing of vitrectomy is controversial. There is elaborate evidence that pars plana vitrectomy done on the day of cataract surgery is associated with improved visually (Page 1790 Section 11 Retina Vitreous - Management on Dislocated Nucleus Chapter 217 by Dhanashree Ratra ). The brief period of observation may be necessary to allow resolution of corneal edema and improve visualisation during vitrectomy. Early intervention within the first 2 weeks is generally recommended. Therefore, with respect to the one hour delay we see no negligence on the part of the opposite parties since as per medical literature we pars plana vitrectomy need not be necessarily be done on the same day of the cataract surgery. Now we address ourselves to the aspect of medical negligence if reasonable care and precaution was taken. On perusal of the material on record we observe that Ex. A. 9 medical report states as followed: "mr. Ramakrishna, 51 years old gentleman was seen in the institute on 22 December, 1999 referred by Dr. K. Satyanarayana from Hyderabad. He came with complaints of defective vision of the left eye noticed 20 days back. There was history of cataract surgery and pars plana vitrectomy in the left eye on 3 December, 1999. Earlier he had undergone right eye cataract extraction with intraocular lens implantation in January 1997. He was known diabetic and hypertensive on treatment. On examination here, his visual acuity was 20/30 p in the right eye improving to 20/20. N6. The visual acuity in the left eye was 20/40. The applanation pressure was 16 and 18 mmhg in the right eye and left eye respectively. Anterior segment examination of the right eye was pseudophakia with posterior chamber intraocular lens. Left eye showed lid edema, congested conjunctiva, stromal corneal edema and the anterior chamber intraocular lens was in place. Fundus examination of the right eye was normal. Left eye showed giant retinal break extending clock wise from 6 O''clock to 9. 30 meridian. The temporal half of the retina was totally detached. Based on these evaluation diagnosis of giant retinal break with retinal detachment of the left and seudophakia of the right eye was made. He was put on topical pred forte, ciplox and atropine eye drops and was advised to undergo combined vitreoretinal surgery which needed inftraocular lens explanation, belt buckling, vitrec-tomy, perfluoro corbon liquid injection and silicone oil exchange under general anaesthesia. The visual prognosis was extremely guarded which was explained to him. The surgery was done under general anaesthesia on 4 January, 2000. The surgery was uneventful and on the first post-operative day review on 5 January, 2000 fundus showed attached retina with good photocoagulation marks. "

R. W. 1 in his deposition stated as follows: "we attempted phaco during surgery. I realised that his eye is not good for phaco emulsification. So I stopped the surgery, since the retinal surgeon was not available in the hospital; and as I felt that the retinal surgeon is a must to proceed with further surgery, I went to down to call the retinal surgeon after postponing the surgery. Later the retinal surgeon Dr. K. Satyanarayana has come and examined Mr. Ramakrishna and decided that it will be better to do vitrectomy and lensectomy and went ahead and did the above surgery. Before starting the surgery I felt that there is no need for the presence of Dr. K. Satyanarayana. This surgery can be done within one week of dropped nucleus. During initial steps of surgery while rotating nucleus I realised that it is not moving properly. I suspected posterior capsular rent and immediately I stopped surgery and closed the wound and called the retinal surgeon. Ex. A. 6 states that while doing phaco by our posterior segment surgeon there was P. C. rent and total cataract lens disclocated on the retina. On the same day after repeating the block we have taken up PPV plus nucleus removal plus ACIOL on the table we have noticed retinal haemorrhage. " r. W. 2 in his cross-examination stated as follows: "i was called by O. P. No. 1 as the cataract was dropped inside for performing 3 port vitrectomy and removal of dropped cataract lens. I cannot exactly remember the time but it can be around 1. 30 p. m. on the same day. O. P. No. 1 came to me. I was in a different hospital as I have to cover two charity eye hospitals. It is true to suggest that I am a retinal specialist. It is true that O. P. No. 1 is an Opthalmologist. It is not necessary that 2 surgeons would be present for performing cataract surgery. It is true to suggest that posterior capsule is ruptured. It is not true to suggest that posterior capsule separates lens from other important eye structures. In fact it is a part and parcel of natural lens inside the eye. It is not true to suggest that vitrectomy was done because posterior chamber damaged. It is not true to suggest that vitrectomy loss leads to retinal detachment. It is not true to suggest that on account of the operation the retina got damaged. It is not true to suggest that the vitreous gel has not come out. After the operation, I have seen the patient on 21st December, 1999. As per the vitrectomy procedure we have to remove the vitreous gel along with dropped cataract which is a standard procedure else where also. "

THE main crux of the matter is whether dropped nucleus is a known occurrence during PHALCO surgery; and whether the complainant was able to establish that the doctor has not followed standard normal medical practices and has indulged in negligence leading to loss of vision in his left eye. The medical literature clearly states that the risk factors for posterior dislocation of lens fragments include: - previous trauma of surgery,- pseudoexfoliation- hereditary disorders- hard nucleus, deep set eyes and patient''s eye movement during surgery.

It is evident from the material on record that the opposite party doctors have not stated any such risk factors prior to the commencement of the surgery. The medical literature on Management of Dislocated Nucleus by Dhanashree Ratra, Chapter 217 also states that the frequency of posterior dislocation of lens fragments decreases with increasing surgical experience. The literature also states that three port pars plana vitrectomy is the ideal way of retrieving the dislocated fragments. The opposite parties in their letter addressed to Dr. Tara Prasad Das, Chief Retinal Surgeon, L. V. Prasad Eye Institute states as follows: "while doing phaco by our Anterior Segment Surgeon there was P. C. rent and total cataract lens dislocated on the retina. On the same day after repeating the block we have taken up PPV + nucleus removal + ACIOL on the table. We have noticed retinal haemorrhage (before surgery ). I have done PPV and cataract lens was removed and ACIOL was done. We have continued follow up today. We could see. . . . . . . GRT which needs urgent SR + PPV. Kindly admit him and do the needful. "

THE opposite parties have not stated as to what medical steps they have taken to prevent the complications of pars plana vitrectomy with the respect to the attempts made for removal of dislocated fragments. In Ex. A. 12 case summary issued by Sankara Netralaya it is stated as follows: "the left eye had total corneal haze with no further details. Intraocular pressure was 15 mm of Hg in the right eye and the left eye was unrecordably low. Fundus examination of the right eye with indirect ophthalmoscopy and scleral depression was normal. Examination of the left eye was not possible because of corneal haze. Ultrasound examination of the left eye was not done as the patient had silicone oil in that eye. He was not advised any surgical intervention for the left eye considering that he had multiple surgeries done elsewhere with presence of recurrent retinal detachment noted in February 2000 and superior retinal detachment as noted in May 2000. He also had associated total corneal opacity. He was clearly explained prognosis regarding his condition. He was advised cosmetic contact lens for the left eye, which was given to him with clear instructions. He has been told that he requires regular follow up for his right eye every 6 months. "

We rely on the judgment of the Apex Court reported in Mrs. Shantaben Muljibhai Patel and Others v. Beach Candy Hospital and Research Centre and Others, I (2005) CPJ 10 (NC ). In Smt. Savita Garg v. The Director, National Heart Institute, IV (2004) CPJ 40 (SC)=vi (2004) SLT 385, reported in Supreme Court and National Commission on Medical Negligence - Vol. II Part A, the Apex Court held as follows: "courts have taken view that hospital is responsible for acts of their permanent staff as well as staff whose services temporarily requisitioned for treatment of patients - But at same time hospital can discharge burden by producing treating doctor in defence that all due care and caution taken. "

In the instant case it is for the opposite parties to explain as to how the patient who was admitted on 3. 12. 1999 for a simple cataract surgery ended with loss of vision in his left eye and secured complications when there were no high risk factors prior to the conducting of the surgery. The contention of the opposite parties that only right eye was operated upon is unsustainable on the ground that the medical record, Exs. A. 4 and A. 5 show that the operation was conducted on the left eye. Taking into consideration that the complainant was put to a lot of mental agony and had visited both the opposite parties i. e. L. V. Prasad Eye Institute and Sankara Netralaya several times i. e. , on 3. 12. 1999 when he was operated and thereafter on 5. 1. 2000, 16. 2. 2000, 10. 7. 2000, 21. 7. 2000, 26. 7. 2000, 29. 3. 2000, 4. 10. 2000 and 30. 7. 2001, we are of the considered opinion that necessary post-operative care was not taken by opposite parties and there was medical negligence on account of which the patient, who had gone for a cataract operation had lost his vision. The opposite party has not explained as to why repeated surgeries were required after the operation. Here damage has been caused with respect to the patient losing his vision completely. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well stated in the Law of Torts, Ratanlal and Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G. P. Singh ). It is stated (at pp. 441-442), "negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something, which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. . . . . The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former''s conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort. "

In the instant case we are of the view that the opposite parties did not exercise the ordinary skill of an ordinary competent man exercising that particular art and did not establish that they have followed normal medical practices as per the standards of medical parlance and that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.

TAKING into consideration that the complainant was necessitated to undergo multiple operations and lost vision in his left eye, we are of the considered opinion that an amount of Rs. 2,00,000 towards medical expenses and mental agony suffered would meet the ends of justice. We also award costs of Rs. 5,000. Time for compliance six weeks failing which the amount would attract interest at 9% per annum. In the result, this complaint is allowed directing the opposite parties to pay to the complainant Rs. 2,00,000 towards medical expenses and mental agony together with costs of Rs. 5,000 within a period of six weeks from the date of receipt of this order, failing which the amount would attract interest at 9% per annum. Complaint allowed.