Navjyoti Eye Centre vs Mohd Islam

THE facts in brief are that the complainant/patient Mr. Mohd. Islam''s right eye was injured by hitting of iron rod on 27.10.2000. He took treatment from LNJP Hospital, Guru Nanak Eye Centre from 27.10.2000 to 4.11.2000. Thereafter, being not satisfied with the treatment of said government hospitals, complainant approached the OP Dr. Vivek Pal, Navjyoti Eye Centre on 12.5.2001. OP assured him that, eye sight would be restored as before, during the course of treatment. The OP performed another surgery on 16.5.2001. OP put some fluid in his operated eye, which caused further pain, but OP assured of relief soon, but no avail further. Again on 8.8.2001, the silicon oil was removed from his eye. The OP did not fix a lens in the operated eye despite patients several requests. The complainant alleged that, the OP and his associate doctors were experimenting on his right eye. Thereafter he went to Parmanand Hospital, wherein it was observed that he had developed infection because silicon oil was put in his eye. Thus, on the advice from Parmanand Hospital, he went to AIIMS, remained there form 11.08.2001 to 18.08.2001. The doctors at AIIMS Hospital observed that some silicon oil was present in his right eye. The doctors at AIIMS hospital removed the same after which the patient felt better. Thus, the complainant alleged that because of negligent treatment given by the OP, his right eye became completely blind, its 30% disability. He suffered continuous headache, watering in the left eye. Therefore, complainant filed a complaint No. 64 of 2003 before District Consumer Disputes Redressal Forum (Central), Delhi on 26.10.2002 and prayed for compensation of Rs.1,50,000/ - along with interest @20% per annum.

THE District Forum, vide its order dated 19.7.2007 held the petitioner liable and directed to pay Rs.2,00,000/ - as compensation and Rs.5,000/ - towards the litigation to the complainant.

AGAINST , the order of District Forum, the OP preferred First Appeal No. 670 of 2007 before the State Commission. The State Commission by its order dated 5.8.2008 reduced the compensation from Rs.2,00,000/ - to Rs.50,000/ -. Thus, aggrieved by the order of State Commission, two cross revision petitions were filed in this Commission. Revision Petition No. 4870 of 2008 was filed by the complainant whereas Revision Petition No. 4807 of 2008 was filed by the OP.

HEARD both the parties. The complainant was present in person and narrated the facts in the complaint as his arguments. The rival arguments by the learned counsel for the petitioner, Ms Anu Narula and Kunal Auuroa, that there was severe injury and damage to the complainant''s right eye was of permanent nature and the complainant was rather clearly and categorically explained the limitations of the operation and the bleak chances of his recovery even after the surgery. The patient was operated so that he could be relieved of his severe and acute pain in his right eye. It was only after fully understanding the implications, consequences of surgery, the complainant consented for his surgery.

I have perused the medical record, which revealed that the Guru Nanak Eye Centre and at the Lady Harding Hospital, the vision of the right eye was recorded, as inaccurate projection. Same was explained by OP about the poor visual prognosis. Even the prescription card from the Parmanand Hospital, which diagnosed his case as Corneal oedema with degeneration in the right eye.

AS per clinical record, in my opinion, the OP gave treatment to the patient after a thorough examination, diagnosed it as Vitreous Hemorrhage and retinal detachment. The Intra Ocular Lens of his right eye which was implanted at Lady Harding''s Hospital on 23.04.2001 had got displaced and was lying in the vitreous cavity. The OP removed silicon oil completely, even if tiny residual oil droplets remained in the eye will not just cause any infection or endophthalmitis. The AIIMS record also did not mention about any removal of residual silicon oil. Therefore, endophthalmitis was due to infection and grievous injury to the patient''s right eye. It may be also, due to multiple operations held at different places.

IN this context, the counsel for OP relied upon several judgments of Apex Court and of this commission. I would prefer to take reference from those landmark judgments of Hon''ble Apex Court which discussed about the Medical Negligence.

THE Supreme Court in Laxman Balkrishna Joshi (Dr.) Vs. Dr. Triambak Bapu Godbole, 1969 AIR(SC) 128 held: "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 viz., 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 practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires."

In Jacob Mathew Vs. State of Punjab, 2005 6 SCC 1, the Hon''ble Supreme Court observed in para 29 as follows: 29. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end -dose of medicine to his patient. In the case of Indian Medical Association vs. V.P. Shantha, 1995 6 SCC 651 the Hon''ble Supreme Court approved a passage from Jackson And Powell on Professional Negligence and held that, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. It is also well settled law as observed by Hon''ble Apex Court in the case of Kusum Sharma and Others vs. Batra Hospital, 2010 1 CPJ 29(SC) that "negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because 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. Medical practitioner would be liable only when his conduct fell below that of the standards of a reasonably competent practitioner in his field."

IN the instant case, the complaint suffered serious traumatic injury to his right eye and he suffered Vitreous hemorrhage, who took treatment from several hospitals, undergone multiple operations and treatment modalities from different hospitals. The OP is a qualified and experienced ophthalmic surgeon; he has treated the patient as per standard of ophthalmic practice. I do not find any deviation from the skill or any deficiency in service during the diagnosis and treatment given by the OP.

THE Hon''ble Supreme Court in Dr. C.P.Sreekumar Vs S. Ramanujam, 2009 7 SCC 130 that; 21We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew''s case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the "facta probanda" as well as the" facta probantia".

IN the instant case, the mere averments in the complaint are not considered as evidence and thus, just bald statements are not acceptable.

THEREFORE , on the basis of forgoing discussion, the revision petition No. 4807 of 2008 filed by the OP is allowed and the Revision Petition No. 4870 of 2008 filed by the complainant is dismissed. Consequently, the complaint is hereby dismissed. The parties are directed to bear their own costs.