JASWINDER SINGH vs J.S.SAINI

THE complainant No. 1, Jaswinder Singh, aged 6 years was born with physical deformity of difference in the size of two eyes. THE left eye appeared a little smaller than the right one. He used to visit the Post Graduate Institute, Chandigarh (hereinnafter referred to as PGI) alongwith his grand mother Smt. Bimla Rani, who was under treatment of her own eyes in the PGI. Dr. J.S. Saini, opposite party advised the complainant No. 2 Shri Barjinder Singh that the physical deformity of the left eye of complainant No. 1 could be removed by a minor operation. Jaswinder Singh was examined and thereafter, he was admitted as an in-door patient. THE Out Patient Door Card was issued to the patient on payment of Rs. 10/- vide Annexure C-1. A sum of Rs. 640/- was paid as charges vide Receipt C-3. THE operation was performed on 26.6.1996 by Dr. Neeraj Sud, opposite party No. 2, as Senior Resident, PGI, now serving in Guru Harkishan Eye Hospital, Sohana as the patient was delegated to him by opposite party No. 1 Dr. J.S. Saini. It has further been alleged that the operation was carried out in a negligent manner because Superior Rectus (SR) muscle was cut, resulting in injuries to the Cornea and Eye ball to the left eye of complainant No. 1. THE complainants have enumerated the following defects and injuries to Jaswinder Singh, complainant No. 1, as a consequence of the operation by opposite party No. 2 : (A) Eye-lid of the left eye further drooped rather than being lifted. (B) Eye ball of left eye has moved down and does not move up resulting in double vision. (C) White sheath in the left eye has drooped down. (D) Wounds developed in the lower portion of the Cornea resulting in deterioration of eye sight. (E) Eye lid does not close properly if closed gently. (F) Tear gland affected resulting in non formation of tears requiring use of medicine hourly-hourly and insertion of costly plugs in the left eye to prevent loss of tear drops put in the eye.

COMPLAINANT No. 2 got the patient treated as an out-door patient of PGI for some time but finding no improvement got him examined at Guru Nanak Eye Centre, New Delhi where the treatment is still continuing but there is no hope of success (Annexure C-5). In his desperation, complainant No. 2 also got the history of the patient studied at St. Francis Medical Centre, Pitsburg, U.S.A. It has indicated an expense of $ 20,000 for treatment of the patient but without any commitment of cure (Annexure C-6). The complainant has pleaded for compensation from opposite party Nos. 1 to 3 for negligence in carrying out the operation and also for mental agony, harassment, loss in profession, etc. to the tune of Rs. 19,55,000/-, which is as under : (a)Expenses on hospital fee, medicines, visits from Bhatinda to Chandigarh, etc. ...Rs.25,000/- (b)Expenses on hospital fee, medicines, visits to Delhi from Bhatinda, etc. ...Rs.30,000/- (c)Compensation for pain, suffering, disability, etc. complainant No. 1 and expenses for future treatment ... ...Rs.15,00,000/- (d)Compensation for loss of studies ...Rs.1,00,000/- (e)Compensation for mental agony, harassment, loss in profession, etc. to complainant No. 2 .. ...Rs.3,00,000/-

In his reply, opposite party No. 1 Dr. J.S. Saini has averred that the surgery was conducted on the patient in June, 1996 and the present complaint is barred by time. It has further been averred that there is no cause of action and an inflated sum has been claimed. It has also been averred that the complainant demonstrated Ptosis (drooping of the left eye) at the time he was evaluated at the PGI. It has been denied by him that he ever told the complainant No. 2 that the physical deformity of the patient could be cured by a very minor operation. It has also been averred that the patient was neither examined by opposite party No. 1 nor he advised surgery on 25.6.1996 and the name mentioned in the records was a part of routine. It has further been averred that on the contrary, the opposite party No. 1 was to proceed on an official advanced training course to U.S.A. from 3.7.1996 and he did not advise the patient that he will be operated upon on 26.6.1996 by him which was his last operation day before his departure to U.S.A. Dr. Neeraj Sud, opposite party No. 2, the Senior Resident, who operated upon this patient on 26.6.1996 is a qualified Post Graduate in Opthalmology and on the day of operation, he had three years'' Post Graduation experience including opthalmic surgery. The complainant and his guardian agreed to get the patient operated upon from Dr. Neeraj Sud (Copy of consent is Annexure OP- Dr. Neeraj Sud has averred that he had performed 74 operations and out of these, 21 operations are performed at the level of Senior Resident. The plea that the surgery was performed without expertise has been denied. It has been further averred that following the operation, the patient was evaluated and treated by Dr. Neeraj Sud in consultation with and with the approval of the Head of the Department of Opthalmology. The patient was also examinted and advised treatment by Dr. Kanwar Mohan in the Squint Clinic and Dr. Usha Singh in the Opthalmoplastry Clinic of the PGI. All careful action was taken to treat the patient and at no stage the patient was neglected. It was further averred that the patient was brought to the opposite party No. 1 on 7.1.1997, almost after 6 months of the operation, the patient had vision of 6/18 aided on the operated left eye, residual ptosis, i.e. down-word displacement of 4-5 mm., poor LPS muscle action, clear cornea, parallelism of eyes in the primary position and restricted ocular movement in upgaze. The guardians were advised to get the patient registered for squint clinic and seek further treatment. He was also advised for further evaluation in opthalmic plastic service for correction of residual ptosis. Thereafter the patient did not meet the opposite party No. 1. The patient was never advised surgery by the opposite party No. 1 nor surgery performed by him. It has also been further averred that the surgical problems of the patient, namely the residual ptosis is a common occurrence and the other problem of the patient of difficulty now of relative inability to move the eye upward is also well known.

IN a separate reply filed on behalf of opposite party No. 2, it has been averred that the complainants have concealed the facts because the patient was informed about the likely possibilities of residual imperfections and potential complications. The limitations of the surgery were explained before the operation as also psychological complications and the possible result in view of the levator function, stiffness of the muscles/lid as is routine in all cases to be operated for ptosis. The Guru Nanak Eye Centre, New Delhi, has also given the same assessment. It was as a matter of fact, a case of ptosis, i.e. drooping of the left eye lid. It is wrong to state that the left eye was smaller in size than the right one. It was actually a case of deformity of the left eye, ambylopia or lazy eye. The patient was first examined at the OPD of PGI on 16.4.1996 and was admitted on 25.6.1996 as per the hospital record and the ptosis surgery was recommended. At no stage, the PGI gave an impression that this was a minor surgery. It has been further averred that if the eye retains its moisture and has an adequate tear film with good protective eye movements the patient will tolerate this post-operative lagophthalmos well. If the patient has impairment of eye protective mechanisms, exposure problems and visually threatening problem may develop. It has specifically been denied that the surgery was performed in a negligent manner or on a portion of the eye where it was not required. It has also been averred that total care was exercised in disecting the muscle and appropriate amount of resection done so as to position the left upper lid at the level of right upper lid, and it is supported by the sketches available on record. On behalf of the respondents there is a plea of limitation. In this case the operation was performed on 26.6.1996 and the complaint was instituted on 25.6.1998. Thus the plea of limitation has no force.

AFTER the operation, the patient was examined on 11.7.1996 by Dr. K. Mohan and his comments are contained in Annexure R-2/1. The vision is reported to be 6/9 (aided in both the eyes), which belies all allegations made by the complainants. The patient did have temporary exposure of the cornea which fully recovered because the treatment was given on the expected lines with ointments and drops which have to be applied for a long time especially during the night. This complication does occur in the case of ptosis. However, it has been successfully managed and controlled. The patient demonstrated temporary and reversible ambylopia (lazy eye) from continued drooping of the lid in left eye, had superior rectus muscle under action resulting in difficulty in fully moving the eye in upward gaze. Having fully apprised of the post-operative problems, the guardian of the patient, complainant No. 1, gave a clear consent for surgery of the child under any kind of anaesthesia at the risk of the guardian. The temporary decrease in vision is the result of continued ambylopias (lazy eye) from drooped eye lid which the complainant No. 1 had even before the operation. Opposite party No. 2 has averred that there was neither any deficiency in service nor there was negligence on his part, during the operation. On 16.4.1999, the case was adjourned for arguments for 3.5.1999. On 3.5.1999, there was a written request for adjournment by the Counsel for opposite party Nos. 1 and 3, saying that the patient will be re-examined, and if possible carry out further ptosis operation to rectify his left eye. The case was accordingly adjourned to 27.5.1999. On 27.5.1999 on the request of Counsel for both the parties, more time was granted and the case was adjourned to 30.7.1999. On 30.7.1999, it was averred by the Counsel for the complainant No. 1 that there was no response from the doctors of the P.G.I. and the complaint has been ultimately considered and heard on merits. After hearing the learned Counsel for the complainants as well as the opposite parties, and after going through the records of the PGI, as also of the Guru Nanak Eye Centre, New Delhi, the Commission has found that there has been negligence on the part of opposite party No. 2 and opposite party No. 3.

AS a consequence of operation by Dr. Neeraj Sud, instead of lifting of the left eye-lid it further drooped and the eye-ball cornea also moved down resulting into double vision. After the operation, the child patient has suffered a serious damage to the tear gland resulting in non-formation of tears requiring use of medicine 3 hourly and insertion of costly plugs in the left eye to prevent loss of tear drops put in the eye.

THE learned Counsel for the PGI has brought to our notice, following paras which are quoted, from Raynold N Berke- Complications in Ptosis Surgery : "...This routine must be followed for weeks, if necessary until the corneal epithelium adjusts to the exposure and staining does not occur. When the patient is a child, his parents should be instructed to tape the lids together daily at bed time, except the night preceding the visit to the physician, so that he may judge when further taping is unnecessary." "...If the upper fornix prolapses over the upper limbus and is small, it may retract in a few weeks; but if it is large, an attempt should be made to replace it by means of a saddle suture anchored to the tendon of the superior rectus. If this cannot be done, the prolapsed conjunctiva must be excised." "...Occationally a temporary weakness of the homolateral superior rectus may occur, expecially if one or more ptosis operations have been done previously. If the superior rectus has not been injured during the operation or was not paralyzed before the weakness will usually disappear spontaneously in a few weeks or months." "...When a residual ptosis remains after a previous resection of the levator, a second resection of the levator will offen produce a satisfactory result. This is especially true when failure of the first operation was due to insufficient resection or to pulling out of the sutures." "...Because resection of the levator muscle is the only operation that can give a perfect or nearly perfect cosmetic and functional result, this procedure is the operation of choice whenever the levator action is adequate."

It has been found that temporary weakness of homolateral superior rectus may occur especially if one or more ptosis operations have been done previously but in this case only one operation has been carried out and the Doctors avoided further attention to the patient. It also shows that the superior rectus muscle has been injured during the operation otherwise, the weakness would have disappeared in a few weeks or months. According to the findings that the residual ptosis remains after a previous resection of the levator, a second resection of the levator could produce a satisfactory result, which in this case has not been carried out because the first operation was a failure due to insufficient resection or to pulling out of the sutures. It has also been noticed that the resection of the levator muscle is the only operation that can give a perfect or nearly perfect cosmetic and functional result. The operation in this case was not properly carried out. It is incorrect that the patient was brought to the PGI six months after the operation. The record indicates that he was brought to the PGI on 6.7.1996, 8.7.1996, 16.7.1996, 19.7.1996, 22.7.1996, 25.7.1996, 1.8.1996 and so on but with no success.

In conclusion, the negligence on the part of operating Surgeon Dr. Neeraj Sud, and the P.G.I. Chandigarh where the patient was admitted and remained under treatment, is well-established. It is ordered that in all the P.G.I., respondent No. 3 shall pay compensation of Rs. 2,00,000/- which shall be payable to the father/guardian of the patient within four months. Out of it a sum of Rs. 50,000/- shall be recoverable from Dr. Neeraj Sud, respondent No. 2. The respondent No. 3 shall pay costs Rs. 5,000/-. Complaint allowed with costs.