P.C.DWIVEDI vs KAMALABAI PANDEY

THIS is an appeal filed by Dr. P.C. Dwivedi, Professor and Head of the Department, Department of Opthalmology, Govt. S.S. Medical College, Rewa against the order dated 21.8.2001 passed in Case No. 376/1997 by the District Consumer Disputes Redressal Forum, Rewa (for short the ''District Forum'').

THE facts of the case in brief are that the respondent/complainant Smt. Kamalabai Pandey, consulted the appellant on 3.12.1996 at his residence. THE appellant advised cataract operation of her eyes. THE respondent No. 1 was admitted in the Government Hospital on 6.12.1996 and her left eye was operated on 7.12.1996 and Intra-Ocular Lens (IOL) was implanted. She was discharged on 12.12.1996 but she was having pain in the eye, therefore, she contacted the appellant on 19.12.1996 who prescribed some medicines but when there was no relief, therefore, on 24.12.1996 appellant again examined her left eye and told that infection has developed in her eye, therefore, another operation will have to be conducted and the lens implanted has to be removed and for that there is no facility in the Government Hospital, hence, advised to go to Nagpur or Chennai. She consulted Dr. S.C. Batalia, on 25.12.1996 at Jabalpur who referred to Dr. Prashant Agnihotri of Nagpur who performed some operation on 26.12.1996 and charged Rs. 16,500/-. She was discharged by Dr. Prashant Agnihotri on 27.12.1996 still there was no improvement, therefore, she consulted Dr. S.C. Batalia of Jabalpur on 1.1.1997 who admitted her in his hospital but as infection had developed and there was no chance of regaining vision in this eye and to save right eye it was necessary to remove the infected eye, therefore, on 2.1.1997 Dr. S.C. Batalia of Jabalpur removed her left eye. It is alleged by the complainant/respondent No. 1 that the appellant Doctor had examined her right eye and has made all necessary arrangements for operation of cataract of right eye but negligently operated her left eye. The operation was not conducted properly, therefore, infection developed as a consequence of that she has lost her eye permanently. She, therefore, approached the District Forum claiming a compensation of Rs. 1,00,000/- for medical negligence in performing first operation by Dr. P.C. Dwivedi and Rs. 35,000/- from Dr. Prashant Agnihotri because he knowing the fact that she has lost her eye sight still he unnecessarily operated her eye and charged Rs. 16,500/-. She has also claimed a compensation of Rs. 75,000/- of the expenditure incurred in treatment and in consulting other Doctors, hence total claim of Rs. 1,75,500/- from appellant and Rs. 35,500/- from the respondent No. 2. The claim was resisted by the appellant. The District Forum after appreciation of evidence adduced by both the parties held that Dr. P.C. Dwivedi was responsible for negligently operating the eye of the complainant. However, Dr. Prashant Agnihotri of Nagpur who had performed another operation was not found negligent, therefore, no order was passed against him. Appellant Dr. P.C. Dwivedi has preferred this appeal against this order.

The appellant Dr. P.C. Dwivedi has submitted that the District Forum has not appreciated the point that the patient was admitted in the Government Hospital and operation was also performed by him in Government Hospital and the treatment was also given in the Government Hospital. He has further submitted that he has been treating and doing cataract operations since last 10 years and has full professional skill.

IN the operation of the respondent No. 1 he has taken all care in pre-operative and post-operative stages. The District Forum on the basis of a decision of Supreme Court in INdian Medical Association v. V.P. Shantha, III (1995) CPJ 1 (SC)=(1995) 6 SCC 651, held that when any doctor renders any service after charging fees then he is covered under the provisions of Consumer Protection Act, 1986 (for short the ''Act'') but the District Forum has not taken into consideration that he had examined the patient without charging any fees and has treated and operated the complainant free of charge in Government Medical College and Hospital, therefore, in view of the law declared by the Hon''ble Supreme Court in V.P. Shantha''s case (supra), because he has rendered his services free of charge hence, this case does not fall under the provisions of the Act. He has further stated that because he has performed pre-operative test and then conducted the operation and then implanted IOL taking all care and precautions, therefore, he cannot be held responsible for any medical negligence. He has further submitted that the District Forum has held him negligent only on the version of the complainant that preparation for operation of right eye was made but left eye was operated. He submitted that on examination he found that the vision in left eye was less than that of right eye, therefore, he suggested operation of left eye on priority basis though both eyes were to be operated for cataract. He had explained the correct position to the complainant and after taking consent operated her left eye. The operation was performed on 7.12.1996 and IOL was implanted with due care and skill and there was no complication till she was discharged on 12.12.1996. Therefore, only on the presumption and allegations of the complainant that she was told that her right eye is to be operated and operation of the left eye was done, he cannot be blamed for any medical negligence. He has further submitted that allegation of the complainant that he charged Rs. 1,050/- as consultation fees is also baseless because this was the amount which was paid by the complainant to Annapoorna Drug House for purchase of medicines and IOL. The District Forum based its finding only on the version of the complainant that she paid Rs. 1,050/- as consultation fees, therefore, the findings of the District Forum is erroneous and should be set-aside.

WE have gone through the evidence and papers and have considered the arguments of Counsel for both the parties. From bare reading of the order of the District Forum we find that the District Forum had dealt in length the issue that it was the right eye of the complainant which was to be operated and preparations were done by appellant Doctor for operating right eye but in spite of operating right eye, he operated left eye and also implanted IOL. The District Forum has also treated this case under the Consumer Protection Act on the basis of mere allegation that a fee of Rs. 1,050/- was charged. Now in this case, we have to examine the following points : (1) Whether complainant can be said to be consumer under Section 2(1)(d) of the Act ? (2) Whether the appellant Doctor has committed any medical negligence by operating left eye ? (3) Whether loss of vision and consequently removal of eye can be attributed to negligence of the appellant ?

So far as the point whether the complainant is covered under Section 2(1)(d) of the Act is concerned, we find that the District Forum has based its finding only on this ground that a fee of Rs. 1,050/- was paid by the complainant to the appellant doctor. The appellant has denied the allegations and has stated that he has charged only Rs. 80/- as consultation fee on 3.12.1996 when the complainant contacted him at his residence, and on that day he advised the complainant to come to the Government Hospital where after examination she will be admitted and necessary operation will be performed.

WE find that the version of the appellant is just and reasonable because charging of Rs. 1,050/- as consultation fee is not prevalent in places like Rewa. The appellant has stated that it was the amount of medicines and IOL which was paid by the complainant on 7.12.1996 which was not the fees as is clear from the receipt of Annapoorna Drug House on the prescription of Dr. P.C. Dwivedi. When a medical store sells medicines then he writes the name of the prescribing Doctor, therefore, writing name of the prescribing Doctor does not mean that he has charged fees. Therefore, we find that this amount has not been paid towards fees for operation. The patient was admitted in Government Hospital and operation was also performed in Government Hospital where no fees is charged from the patients. The Supreme Court in V.P. Shantha''s case (supra), wherein Hon''ble Supreme Court has mentioned three categories : (i) where services are rendered free of charge to everybody availing the said services; (ii) where charges are required to be paid by everybody availing the services; and (iii) where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay the rendered service free at charges.

THE above case clearly mentions that where Doctors and Hospitals are rendering services without any charge whatsoever, the person availing of service would not fall within the ambit of service as defined under Section 2(1)(d) of the Act. As the operation was performed in Government Hospital where no fees is charged and the treatment was free of charge, therefore, the finding of the District Forum is erroneous and cannot be sustained. We, therefore, find that the District Forum has wrongly held that this case comes within the preview of Section 2(1)(d) of the Act. So far as the point, whether in performing operation of left eye there has been any negligence on the part of the Doctor is concerned, we have to analyse the case on the basis of prescription of different Doctors. The District Forum has held the appellant Doctor negligent only on this ground that he performed operation of left eye instead of right eye but from the papers on record, we find that the complainant was examined by Dr. M.K. Rathore on 20.4.1996 (Annexure P-1) this shows that vision of both Right and Left Eye 6/24 and 6/24 and the cataract was developing. This means that the cataract was developing in both the eyes. The appellant Doctor has submitted that the vision in her left eye was 6/36 while in the Right Eye was 6/24 which has been mentioned in the hospital papers. Both the eyes had immature cataract but because the left eye had decreased vision, therefore, first he operated left eye and implanted IOL. While analyzing the evidence, the District Forum has mentioned that Slit Lamp Examination was done only of left eye and not right eye. To this appellant has submitted that the Slit Lamp Examination was done for both the eyes and the observation recorded by him at page 3 of the hospital record from ''A'' to ''A'', pertains to both the eyes and not for right eye. The District Forum has not accepted this plea but we find that the appellant examined both the eyes and wrote his observations. In column of local examination, examination results and details of both the eyes have been mentioned. This reveals that the Slit Lamp Examination also pertains to both the eyes. The District Forum has also based its finding that the preparations were done for the right eye. The basis is that there is a mention to "dilate right pupil" in pre-operative treatment chart at page 4 of the hospital record from ''A'' to ''A''. The appellant has submitted that he has mentioned "dilate the pupil". In support of his version he has drawn our attention to a medical book IOL Secrets by Dr. V.K. Dada first edition 1992 published by Jaypee Brothers Medical Publishers (P) Ltd., New Delhi in which at page 33 under the heading Pre-Operative Considerations in answer to Question "What are the various steps for preparing a case for implant ?" It has been mentioned that "Dilate the pupil". He, therefore, submits that he mentioned dilate the pupil and not Right pupil. The operation notes reveals that the operation was done of the left eye and this is the point of controversy that preparations were done for operation of right eye and Doctor has performed operation of left eye.

In the papers there is no mention about the fact that which eye was to be operated. Only operation notes reveal that left eye was operated. This means that the dilation etc. was done of both the eyes and because vision was less in the left eye, therefore, Doctor operated the left eye. The consent paper signed by the complainant''s son also do not mention any particular eye and a word "eyes" has been mentioned for operation, therefore, it cannot be said that preparations were done for the operation of right eye and operation was done of the left eye.

MOREOVER, the complainant had complicated cataract in both the eyes, therefore, operation of cataract of both the eyes was to be done and at first instance, operation of left eye was done. From the record, it cannot be said that in the papers for the preparation of operation writing "dilate the pupil" or "dilate right pupil" means that the preparations for operation of right eye were done and the left eye was operated. We, therefore, find that the complainant has not proved beyond doubt that the appellant had issued instructions for preparations of operation of right eye and had done operation of left eye. Now we have to examine that by operating left eye, the appellant Doctor has committed any negligence. Post-operative record reveals that after operation the condition of the patient was healthy, wound healthy, pupil was normal in size on 8.12.1996, 9.12.1996 and 10.12.1996. This means that the operation was all right and the IOL was also in its right position, therefore, the patient was discharged on 12.12.1996 with the instructions to observe strict sanitary conditions. Unfortunately, infection developed which caused permanent loss of vision and removal of left eye became necessary. However, it cannot be said that in first operation, infection developed due to operation of left eye instead of right eye. There are several causes of infection in which one of the cause is non-observation of sanitary instructions by the patient. However, it cannot be said that the infection developed due to operation of left eye instead of right eye.

IN cases of Medical Negligence, the Hon''ble Supreme Court in case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, has held : "(11) 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 a very low degree of care and competence judged in the light of the particular circumstances of each is what the law requires... The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..."

(p. 131) In the present case the appellant who is an experienced eye surgeon had decided to treat the patient. He operated and kept the patient admitted in the Government Hospital. After five days relieved the patient. When infection developed he referred the patient to higher centre. Referring the patient to higher centre reveals that the appellant was vigilant about the condition of the patient. Therefore, this cannot be treated as negligence. To conclude we find that the appellant Doctor cannot be said to be responsible for any medical negligence. Moreover, in the present case, because the complainant was treated in Government Hospital, therefore, this case does not fall under the perview of the Act and also the complainant does not fall within the definition of Consumer as defined under Section 2(1)(d) of the Act. The National Commission in case of Consumer Unity and Trust Society v. State of Rajasthan, I (1992) CPJ 259 (NC), has held that the persons who avail themselves of the facility of medical treatment in Government Hospitals are not "Consumers" and the said facility offered in Govt. Hospital cannot be regarded as service hired for consideration. Hence, no complaint under the Act can be preferred either by any such person or by a Consumer Association on his behalf. Orissa State Commission in Debraj v. State of Orissa, II (1995) CPJ 180, has held that a patient who has been treated in the Government Hospital is not a Consumer within the meaning given in the definition of consumer under the Act. We, therefore, find that the District Forum was not justified in holding the complainant as a consumer, under the Act and, therefore, was not entitled for any compensation and the appellant cannot be held responsible for any medical negligence, therefore, the order of the District Forum holding the appellant responsible for medical negligence and awarding of compensation is erroneous and cannot be sustained.

IN the result, appeal is allowed. The order of the District Forum is set aside and the complaint is dismissed. IN the circumstances, parties to bear their own costs. Appeal allowed.