Namita Chatterjee vs Mousami Banerjee

THE present Revision Petition has been filed before this Commission under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 31.05.2013 in Appeal No. 328 of 2012 passed by the State Consumer Disputes Redressal Commission (in short, ''State Commission ''). The State Commission was pleased to absolve the treating surgeon OP -1 of any liability while upholding the liability of the hospital for a sum of Rs.50,000/ - as awarded by the District Consumer Disputes Redressal Forum, (in short, ''District Forum '').

THE brief facts of the case are that the Petitioner/Complainant Smt. Namita Chatterjee who was suffering from several health problems including Obstructive Pulmonary Disease (COPD) and was under the treatment of the OP -3, Dr. Tushar Maji. After taking fitness from OP -3, the complainant underwent the cataract surgery on the left eye on 14.06.2007 in the H. K. Nursing Home of OP -2; it was performed by the OP -1, Dr. Mousami Banerjee an Ophthalmic Surgeon and a Specialist in Micro surgery. She was discharged on the next day on 15.06.2007, but she was not free from eye discomforts, like irritation, watering and reddishness. She consulted the OP -1, who prescribed some medicines and assured her of early cure. But, the complainant did not get any relief, hence, she once again visited the OP -1 on 21.06.2007, who prescribed some high dose of antibiotics and other medicines and unnecessarily put a note in the prescription about referring the patient to a higher institute. The OP -1 did not even mention any history or any other details. On 23.06.2007, the OP -1 referred the case to a higher institute. Thereafter, the complainant visited Disha Eye Hospital, Hooghly, on 24.06.2007 and Dr. D. Chakroborty diagnosed her case as Endophthalmitis, hence, and he referred her to Dr. T. K. Sinha at Barrackpore Disha Centre. There, Dr. T. K. Sinha operated her left eye and continued treatment till 19.11.2007, which did not yield any result or any improvement, hence, the left eye was eviscerated. Thus, the Complainant ''s allegations were that, as per three -Member enquiry committee at CMOH, Burdwan, the OP -2/ H. K. Nursing Home was unhygienic and had inadequate infrastructure for conducting eye surgery which caused infection in the operated left eye of the complainant. Also, the OP -1 performed cataract surgery in a negligent manner, without taking proper precautions and pre -operative investigations. It was gross deficiency in service, hence, the complainant approached the District Forum for a relief of compensation to the tune of Rs.9,99,000/ -. The District Forum held the OP No.1 and 2 deficient in service and negligent in rendering medical services to the Complainant and granted compensation to the tune of Rs.5,00,000/ - in favour of the Complainant, out of which the OP -1 was directed to pay Rs.4,50,000/ - while the OP -2 was to pay Rs.50,000/ -.

AGGRIEVED by the order of District Forum, the OPs filed the first appeal No.328/2012 and the Complainant filed first appeal No. 421/2012 before the State Commission. The State Commission concurred with the findings of the District Forum as against the Nursing Home/OP -2, however, set aside the order against the doctor i.e. OP -1.

HENCE , aggrieved by the order of State Commission, the complainant preferred this revision. We have heard the counsel for the both the parties. The counsel for the complainant vehemently argued that on 4/6/2007 OP -1 advised OPTHACARE eye drops, it is an Ayurvedic drug, not supposed to be prescribed by the OP -1. There was no license for the said nursing home and the OP -1 conducted the operation negligently in an inadequate and unhygienic infrastructural facilities at hospital, which caused Endophthalmitis.

WE have perused the report of the CMOH, Burdwan which clearly depicts the shabby condition of the nursing home in question and also absence of adequate infrastructural facilities annexed to it. The counsel for the complainant relied upon the decision reported in The Apollo Emergency Hospital and Ors. Vs. Dr. Bommakanti Sai Krishna and Ors 2013 (1) CPR 402 (NC), wherein this Commission observed about the preponderance of possibilities of the infection have been acquired in the hospital itself.

THE counsel for the OP submitted that the patient was advised for treatment from higher centre, but the patient was not co -operative, did not follow the instructions, gone late, to Disha Eye Hospital. The Counsel referred to the judgment of this Commission reported in Dr. V. S. Malik Vs. Avik Mukherjee and Anr 2012 (2) CPR 118 (NC), wherein it was has held, ''''Doctor cannot be saddled with medical negligence, if patient does not co -operate. '''' The counsel further argued that in the absence of any medical expert ''s report/opinion, OP -1 could not be held liable and the report of the CMOH, Budhwan relates to the hospital ''s unhygienic condition and it is silent about any negligence of OP -1/Doctor. We have perused the medical records, the written prescriptions of Dr. Mousami Banerjee, the supporting documents filed by the OP before the fora below. The H. K. Nursing Home possesses a valid licence for the period from 4.06.2007 to 3.05.2008 issued under the West Bengal Clinical Establishment Act (annexure B). Counsel contended that the OP -2 conducts regular fumigation of operation theatre. The Microbiology Culture report (Annexure 1) of swabs taken from Operation Theatre, shows the report was sterile. This report pertains to the swab collected on 20.07.2009; it was not during the period when cataract operation of complainant took place. OP -2 has failed to produce the same.

THE medical records show that Dr. D. K. Maji treated the patient for COPD. The clinical notes of 04.06.2007, clearly show, as follows: 4/6/2007: '''' Adv.: Conjunctival swab LE for C/S, Blfor PPBS 114mg% , Bp -138/80 ECG and Medical check up for any Contradiction for Cat opn, Under LA, Syringing LNLD -patent, IOP LE -17.3, Biometry LE. Also the on the day of operation the patient was under follow up of OP -1. The 21.06.2007 '''' LE pseudophakia with cortical matter+ PL + PR Visual prognosis guarded and explained Ref to higher centre ''''

The OP -1 advised certain eye drops, steroids and antibiotics. This is a standard treatment for ocular infection or in Endophthalmitis and at the same time, the OP -1 explained about the guarded visual prognosis and advised for referring to higher centre. Thereafter, on 25.06.2007, the patient visited Disha Eye Hospital and Research Centre, Kolkata which diagnosed the case as post -operative endophthalmitis of the left eye. The ultra -Sonography confirmed vitrouos abscess suspicion of retinal detachment with chorodal detachments. Thereafter, she was advised for follow -up, till 01/10/2007 and treated conservatively. As there was no scope of visual recovery, she was referred to Dr. Mitra on 14.07.2007, for opinion about evisceration of left eye. The left eye evisceration surgery was performed by Dr. S. Mitra on 19.11.2007.

THE Complainant also approached the West Bengal Medical Council. The enquiry committee ''s conclusion is reproduced as below: Conclusion The management of the case was done correctly and appropriately by Dr. (Mrs.) Mousami Bandopadhyay (Banerjee) and the occurrence of post -operative infection is in no way related to the surgical skill and competence of the doctor concerned.

Regarding the use of Ophthacare eye drops, the counsel for OP drew our attention to the literature published by Himalaya Drugs revealed that, it has good antimicrobial activity and no adverse effects, if administered as per prescribed dosage. Therefore, we do not find any error in prescribing the said drops even though it was an Ayurvedic medicine. Doctor can choose the line of treatment in the interest of patient. Similar view dovetails from several judgments of the Hon ''ble Apex Court. * In a key decision on this matter in the case of Dr. Laxman Balkrishna Joshi v Dr. Trimbak Bapu Godbole AIR 1969 SC 128= (1969) 1 SCR 206) held that, if a doctor has adopted a practice that is considered ''''proper '''' by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong. Doctors must exercise an ordinary degree of skill.

* In Achutrao Haribahau Khodwa and Ors. Vs. State of Maharashtra and Ors., . The Hon ''ble Supreme Court made observations that, in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

WE have referred medical texts on the subject of Endophthalmitis. In the book ''''Cataract Surgery and its Complications '''' - by Norman S. Jaffe 4thEdn. Revealed that, ''''Although the incidence of intraocular infection after cataract surgery has sharply declined during the past 30 years, it is still one of the most catastrophic complications of surgery. Although newer antibiotic agents are available that combat heretofore highly resistant organisms, numerous instances of fulminating infections that defy all therapeutic efforts still occur ''''.

Another reference from Clinical Ophthmology - A Systematic Approach (3rdEdn.) - Jack J. Kanski at Page 300. ''''Acute endophthalmitis is a devastating complication that occurs in about 1 in 1000 cases. Despite early treatment, about 50 % of eyes become blind. ''''

WHO is to be blamed for an unsuccessful cataract operation carried out? Is it the Eye Surgeon or the hospital? In this case, on hand, the patient developed irritation, mild pain after 3 days of surgery and clinically suspected of infection, for which OP -1 started antibiotics from14/6/2007 till 21/6/2001, also advised referral to Higher Centre for further management, urgently. We are of considered view that, the doctor (OP -1) performed the operation without any issue, but we found the unhygienic condition of the OP -2 operation theater. The evidence on record is inadequate, it leads this Commission to nowhere. OP -2has not produced fumigation register, details of other surgeries performed in the said operation theatre. Also, we cannot ignore the report of COMH, Budhwan, thus unhygienic condition in hospital and the operating theater was not sterilized properly, then it could be a disaster. Therefore, on the basis of foregoing discussions, there was no negligence caused by OP -1 either in treatment (cataract surgery) or post operative care. Also, we cannot hold entirely responsible for unhygienic condition as a causation of Endophthalmitis, because it is still one of the most catastrophic complications of surgery. Hence, we see no reason to disagree with the well -reasoned findings of the State Commissionand therefore, uphold the same. The revision petition is, therefore dismissed. There is no order as to costs.