NARINDER SINGH vs Ashok Sharma (Dr.)

THESE appeals have been filed against the order dated 7.3.2007 passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh ( in short, the State Commission'') in Complaint Case No. 63/2006. The complaint before the State Commission was filed by the complainant Narinder Singh, aged about 75 years alleging medical negligence and deficiency in service on the part of the Dr. Ashok Sharma for having wrongly and negligently conducted operation of his left eye (eye with better vision) instead of right eye (eye with negligible or no vision) for which the complainant had approached the said doctor. The complainant claimed a compensation of Rs. 25 lakh from the doctor for the alleged negligence/deficiency in service. The complaint was resisted by the doctor denying any negligence or deficiency in service on his part and it was maintained that the left eye of the complainant was operated under his instructions and instructions of his son and also after obtaining due consent for the same. The State Commission, going by the respective pleas and the material brought on record, held the doctor guilty of the negligence/deficiency in service as a result of which the complainant became blind and consequently allowed the complaint partly and directed the doctor to pay a compensation of Rs. 1 lakh for the loss of left eye besides ordering him to refund the fee of Rs. 38,500 which doctor had charged for the said operation with the stipulation that the total amount shall carry interest @ 9% p.a. from the date of filing of the complaint till payment.

AGGRIEVED by the impugned order of the State Commission, both sides have chosen to assail the order by filing appeals. Appeal No. 226/07 has been filed by Dr. Ashok Sharma challenging the very findings of the State Commission, while Appeal No. 224/07 has been filed by the complainant Narinder Singh seeking upgradation of relief by enhancement of compensation so awarded by the State Commission.

WE have heard Mr. R.S. Bains, learned Counsel for the appellant -doctor and Mr.Jagdish Dhawan, learned Counsel representing the complainant at length and have given our thoughtful consideration to their submissions as also we have gone through the entire evidence and material obtaining on record. The fate of these appeals largely hinge on the answer to the important question as to whether in the given facts and circumstances and .the evidence and material brought on record, Dr. Ashok Sharma can be held guilty of any medical negligence and / or deficiency in service in providing treatment to the complainant Narinder Singh. If we find the answer in affirmative, then the next question would be in regard to quantification of compensation which the complainant should be awarded having regard to the nature and extent of such medical negligence /deficiency in service.

IN the case in hand, the main allegation of negligence as put forth by the complainant in the complaint is that after examination of his eyes, Dr. Ashok Sharma told him that his left eye was perfectly alright but his right eye had almost no vision and, therefore, it was required to be operated immediately. Accordingly all pre -requisite tests were got conducted on his right eye and the operation of the said eye was scheduled and a fee of Rs. 38,500 was paid to the doctor. The case of the complainant is that the operation was conducted on 25.8.2006 and, to his utter surprise and dismay, he and his son noticed that Dr. Sharma had operated the left eye of the complainant instead of the right eye which was required to be operated. Immediately, complaint / protest was lodged with the doctor and the doctor tried to console the complainant and his son by saying that the operated left eye would become alright within a week''s time and thereafter he would perform operation on his right eye also as per the earlier advice. The complainant had been complaining of pain in his left eye from 26.8.2006 to 28.8.2006 and on examination the doctor informed the complainant and his son that a severe infection had developed in his operated left eye and as such the eye itself was required to be removed. Dr. Sharma forcibly removed the left eye of the complainant and as a consequence the complainant became 100% blind and visually disabled as his right eye had hardly any vision. In his version filed before the State Commission, the doctor did not dispute the factum of his having examined the eyes of the complainant and advised operation of the right eye of the complainant which had a failing eye sight as also the factum of tests having been conducted on the said right eye before the operation and also that in fact he conducted the operation on the left eye. The doctor has tried to explain that he undertook the surgery of the left eye instead of the right eye on the asking and insistence of the complainant and his son and after obtaining due consent for the same. It is also not disputed that the operated left eye of the complainant developed serious post surgical infection which necessitated removal of the eye ball of the left eye and it was removed. It was, however, denied that he had by mistake or negligence conducted operation on the left eye of the complainant instead of the right eye.

BEFORE we proceed to examine the contentions put forth on behalf of Dr. Sharma, it is pertinent to note that during the pendency of this appeal an application was moved on behalf of Dr. Sharma seeking permission to lead additional evidence by filing copies of certain documents including the case summary prepared by Dr. Amit Gupta of the Postgraduate Institute of Medical Education and Research (PGI), Chandigarh and the statement, etc., made by the son of the complainant before the police. The said prayer was allowed and the documents sought to be filed were taken on record and have been considered by us.

LEARNED Counsel representing the appellant -doctor Sharma has vehemently argued that case of the appellant is largely based on false averments and allegations so much so that the complainant gave his age as 75 years though he was nearly 80 years at the relevant time and the story in regard to the operation having been conducted on his left eye instead of right eye was false and was otherwise inherently improbable due to following attending circumstances: (i) The appellant -doctor Sharma being a well qualified surgeon having worked at the PGI for seventeen years and having 1500 successful corneal transplants to his credit, could not have committed such a gross mistake by operating on the left eye instead of the right, as alleged by the complainant;

(ii) The kind of mistake alleged by the complainant could be possible only in big hospitals where a large number of operations takes place every day and the operating surgeon may not be fully familiar with the patient and the factual position. In the case in hand, there could be no such possibility as the appellant -doctor is the only doctor who conducts the operations at the rate of one or two operations a day in his own small clinic;

(iii) The complainant made no complaint or grievance during the course of operation about his left eye being operated because he was given local anaesthesia and he could at once know which eye was being prepared for operation by giving anaesthesia;

(iv) The version of the complainant that he had normal vision in his left eye is falsified from the record of the PGI and authoritative medical opinions because if the corneal problem in the right eye was so severe that it had turned one eye blind, it is impossible that his other eye will have normal vision, more particularly so when the complainant had undergone catract operation of both the eyes several years ago;

(v) The complainant has made an incorrect averment that his left eye was operated on 25.8.2006. According to the record, his eye was operated on 24.8.2006 and it were the fee bills which were cleared on 25.8.2006. The complainant would not have cleared the bills, if he was not satisfied with the operation of his left eye conducted on 24.8.2006;

(vi) The complainant and his son are educated and have practised English handwriting and still they gave consent for the second operation held on 28.8.2006 without making any grievance of the non -restoration of the vision;

(vii) In the complaint filed by the complainant with the police, the appellant -doctor has been exonerated.

SO far as the qualification, experience and expertise of the appellant -Dr. Sharma as a corneal transplant surgeon is concerned, it is neither disputed from the side of the complainant nor we entertain any doubt in regard to his skills as an ophthalmic surgeon. It must be for this reason that the complainant approached the appellant -doctor for the surgery of his eye. We must, however, remember that any expert, whether in the field of Medicine, Surgery or any other field, is a human being and human beings are not always infallible. Even the most skilled expert in any field may falter and commit mistake.

WE have given our utmost consideration to the above submissions/circumstances put forth on behalf of Dr. Sharma and on doing so, we can simply observe that such circumstances are relevant and will assume importance to decide a question of fact on the strength of preponderance of probabilities when no direct or cogent evidence is led to establish a fact. In the case in hand, cogent material has been produced in the form of prescription of the doctor as also in regard to the Biometery Report Ex. C2/1 which makes it abundantly clear and should not leave any manner of doubt in anybody''s mind that what was planned to be operated was the right eye (worse eye) of the complainant and not the left eye. This is also in consonance with the factual position that it was the right eye which had reached the stage of almost total loss of vision while the left eye had still some / limited vision. In this connection, the State Commission has considered the evidence and material and the relevant circumstances and come to the conclusion that complainant had approached the doctor for operation of his right eye and in fact it was the right eye which was scheduled for operation and not the left eye. However, the operation was performed on the left eye.

IT has been strongly contended that the operation on the left eye of the complainant was performed after the complainant and his son gave their informed consent for the purpose. We have gone through the printed format titled as "Informed Consent for Surgery" dated 24.8.2008 (which date lends support to the theory of manipulation of the consent) as also the typed "Special Consent" dated 28.8.2006 which undoubtedly mention the proposed surgery of the left eye on both the occasions but the complainant and his son have explained that these formats / papers were got signed/thumb marked from them when the spaces appearing therein had not been filled in or the contents were not explained to them. On the face of the facts and circumstances of the case that ever since the time of consultation, the doctor had advised the surgery of the right eye; it is not possible to hold that the consent given by the complainant and his son was for conducting operation on the left eye. So far as the second consent is concerned, it is of no consequence because it was for the operation of post -surgery complication which had developed in the left eye and was required to be removed as the complainant suffered from PKP infective keratitis with endophthalmitis in the left eye and there was no perception of light.

LEARNED Counsel for the appellant -doctor has then placed heavy reliance on the diagnosis and treatment which the complainant had obtained at the Postgraduate Institute of Medical Education and Research, Chandigarh in April 2006, i.e. a few months before the surgery in question. Much emphasis has been laid on a case summary purportedly prepared by one Dr. Amit Gupta of the said Institute on 13.3.2007 which has a reference to the visit of the complainant to the said Institute on 3.4.2006 and he was advised to attend cornea clinic on Tuesday/Friday and on examination in the cornea clinic on 20.4.2006, "he was diagnosed to have aphakic bullous keratopathy (ABK) in both eyes. Aphakia means he has undergone cataract surgery in both eyes and subsequently developed bullous keratopathy which is severest grade of persistent corneal edema after surgery. The patient was put on hypersol -5 eye drops four times daily in both eyes and was advised USG (ultrasonography) for retina evaluation of both eyes. Posterior segment appeared to be WNL (within normal limits) in both eyes on examination. Few echoes in the vitreous cavity suggestive of vitreous debris were seen. The patient was reviewed on 22.6.2006 and was advised penetrating keratoplasty in both eyes. The patient was blind in both eyes and he was scheduled for penetrating keratoplasty on priority".

ON the strength of the above case summary, it is argued that patient was blind in both the eyes and so he was advised penetrating keratoplasty on priority and, therefore, the complainant is not correct when he says that he had some vision in his left eye or his left eye was better than the right eye. It is argued that even if it is assumed for the sake of argument that the left eye of the complainant was operated instead of the right eye, it will make no difference and in any case has not resulted into any loss or damage to the complainant. In our view, this case summary issued by Dr. Amit Gupta cannot be relied and acted upon because it is not a contemporaneous document prepared at the time when the complainant is stated to have taken treatment, i.e., April 2006. In any case, it was not produced before the State Commission when the complaint was tried and it is not supported by any affidavit by the author of the summary.

IT appears to us that negligence/ deficiency in service on the part of the doctor is not only on account of conducting the operation on the wrong (left) eye of the complainant but is also in relation to faulty surgery conducted on that eye because admittedly the said eye developed such severe infection / complication that it required removal of the eye, leaving the appellant a totally visually -impaired person.

HAVING regard to the entire conspectus of the facts and circumstances of the case in hand and the material brought on record, we are of the considered view that the findings of the State Commission so far it has held the appellant -doctor guilty of negligence/deficiency in service in the treatment of the complainant on the part of the doctor are based on correct and proper appreciation of the evidence and material brought on record. We have no reasons to differ with the same. The findings stand reinforced by the discussion which we have recorded in this order. Consequently, FA No. 226/07 filed by the doctor insofar as it seeks to challenge and set aside the order of the State Commission is liable to be dismissed as devoid of any merits.

NOW coming to Appeal No. 224/07 filed by the complainant -Narinder Singh in regard to enhancement of compensation awarded by the State Commission, we may observe that the compensation has to commensurate with the established negligence/deficiency in service on the part of the doctor and also should be in consonance with the loss/injury suffered by the patient. It has been so held in the case of Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65, where the Hon''ble Supreme Court has held as under: "The word compensation'' is again of very wide connotation. It has not been defined in the Act. According to dictionary it means, compensating or being compensated; thing given as recompense. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been vested with the jurisdiction to award value of goods or service and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the Commission to redress any injustice done to him. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him."

WE have already held that doctor committed a grave mistake in operating on the left eye of the complainant instead of the right eye which hardly had any vision and which was originally scheduled to be operated, which clearly amounts to deficiency in service as a consequence of which, the complainant has been rendered totally blind and a visually impaired / handicapped person. He is around 80 years of age and there is no prospect of reversal of the process, viz., the complainant getting vision in any of his eyes now. He will have to lead a life of dependency for his remaining years. The complainant was occupied in some business and was generating some income. Not only that he will loose the said income but due to the aforesaid disability he would need the assistance of at least one attendant for most of the time even to perform his daily chores besides suffering continuous mental agony and physical disability arising out of said disability. In view of this position, we are of the view that award of compensation of Rs. 1 lakh for the loss of eye / vision is not commensurated with the loss and injury and mental agony suffered by the complainant. In our view, the compensation needs to be enhanced so as to make it double viz. sum of Rs. 2 lakh besides maintaining the order with regard to the refund of fee of Rs. 38,500 charged by the doctor from the complainant with the stipulation of interest as ordered by the State Commission.

IN the result, Appeal No. 226/07 filed by the appellant -doctor is hereby dismissed while Appeal No. 224/06 filed by the respondent is hereby partly allowed. While maintaining the finding of the State Commission in regard to negligence and deficiency in service on the part of the doctor, we direct the respondent -doctor to pay a sum of Rs. 2 lakh (Rupees two lakh) as compensation. Besides we order him to refund the fee of Rs. 38,500 which he had received as professional charges from the complainant. The total amount of Rs. 2,38,500 (Rupees two lakh thirty eight thousand and five hundred only) shall carry interest @ 9% p.a. from the date of filing of complaint till payment. We are informed that during the pendency of the appeals and under the order of this Commission, the complainant has been paid half of the awarded amount. Therefore, we direct Dr. Ashok Sharma to remit the balance amount as per this order to the appellant -complainant within a period of four weeks from today. Both the appeals stand disposed of in the above terms. Ordered accordingly.