RAJ KUMAR GUPTA vs P S HARDIA

THE case of the complainants in brief is that the complainant No. 1-Raj Kumar Gupta being partially blind (-15 and -12 vision) underwent four surgeries at the hands of Dr. P. S. Hardia and became totally blind due to his negligence.

RAJ Kumar Gupta visited Dr. Hardia Advance Eye Surgery and Research Centre Indore, on 17. 3. 1993. On 18. 3. 1993, after the surgery, doctor prescribed certain medicines to be taken and eye-drops to be used for about 2 months. As there was hardly any improvement, the complainant visited Dr. P. S. Hardia on 28. 5. 1993. After testing, another surgery was performed. During the subsequent visit on 9. 10. 1993, additional medicines were prescribed for two months. When the complainant visited the doctor on 2. 12. 1993 for checkup, Dr. Hardia advised another surgery to be undertaken this time with the use of laser and was asked to come after two months. On 3. 2. 1994 when Gupta visited the doctor, he told the complainant that machine was out of order and finally laser surgery was performed on 16. 9. 1994. He alleges that even after the surgery, there was no improvement in the eyesight, on the other hand, it deteriorated and on 22. 1. 1995, complainant lost complete sight in his right eye. On 27. 1. 1995, doctor informed him that retina of the eye has shifted for which there is no treatment and advised him to consult Dr. P. N. Nagpal of Retina Foundation, Ahmedabad. On 6. 2. 1995 after testing the eyes, Dr. Nagpal stated that as a result of use of laser, holes have irrupted in the retina. Civil Hospital also confirmed the above diagnosis. Subsequently, complainant went to Lumbni Ram Ambika Hospital, Sidhartha Nagar, Nepal. Doctor of said Institute referred the complainant to L. V. Parsad Eye Institute, Hyderabad. Doctors of this Institute-Hospital advised for "cornea transplantation", which was possible only in the right eye as the left eye was damaged totally. After waiting for some time in arranging funds in March, 1996, the complainant reached the said Institute. He was told that his eyes are irreparable. As a last effort, the complainant got himself examined at AIIMS, New Delhi but without any success. Wherever complainant had gone for checkup, he was advised that the damage caused in the operations carried out by respondent was irreparable.

The complainants further alleged that Dr. Hardia behaved in a very negligent manner which is unbecoming of a highly qualified doctor and he adopted money extracting practice.

THE complainant No. 1 has been certified as a permanently handicapped person by the office of the Chief Medical Officer, Ballia on 1. 11. 1995. The complainants have claimed Rs. 23,30,000 towards medical treatment, travel, boarding, diagnosis, loss of earning and mental agony suffered by the complainants.

IN his affidavit, the complainant No. 1 has also stated that advertisement pamphlet was issued by Dr. Hardia assuring patients that he will cure all problems of the eyes. Case of the respondent-Dr. P. S. Hardia : The respondent-Dr. P. S. Hardia is a highly experienced Eye Surgeon. In terms of Medical Sciences and Expert Medical Opinion, Radial Keratotomy Surgery (hereinafter referred to as ''r. K. Surgery'') is undertaken for possibility of improving the eyesight when the number of glasses is generally minus 6 or above, since such a situation is related to high myopia which can suddenly cause a retina detachment. Any R. K. Surgery done on cornea can never cause retina detachment since the same is not at all touched. The existence of high myopia is always a cause of retinal detachment. Complainants have falsely stated that after testing eyes Dr. Nagpal stated that as a result of use of laser, holes have irrupted in the retina which have also been confirmed by the Civil Hospital and Lumbni Ram Ambika Hospital, Siddhartha Nagar, Nepal. Similarly, it has been stated falsely that R. K. Laser Operation is not conducted on a person who has a very high number like complainant at 15 and 12 and that respondent had failed to exercise reasonable care and skill expected of a qualified doctor. The material placed on record by way of prescriptions of doctors fails to disclose that holes have irrupted in retina on account of surgery conducted by the respondent. The complainants have also failed to substantiate these allegations by placing on record any expert medical opinion (s) as such the allegations have been made falsely to implicate the respondent under the bogie of deficiency in service.

BY own admission, the complainant-Raj Kumar Gupta was suffering from poor eyesight at 15 and 12 as also from high myopia. This necessitated immediate R. K. Operation being only possibility to improve the eyesight as such the respondent had no option but to conduct R. K. Operation without any fault and default. In hopeless cases like the present one where retina detachment is likely and/or imminent there is no option but to undertake R. K. Surgery which was performed under utmost care and caution. The prescription placed on record shows improvement in the eyesight. The improvement in the eyesight is never assured by any surgeon as such the allegations about any assurances given for improvement are categorically denied. The detachment of retina is always sudden as a result of which, Raj Kumar Gupta might have suffered blindness in spite of the best care taken by the respondent as well as by Dr. Nagpal of Eye Research and Retina Foundation, Ahmedabad and Dr. L. V. Prasad Institute of Hyderabad. Submissions of learned Counsel for the complainants :

LEARNED Counsel drew our attention to the report of L. V. Prasad Institute, Hyderabad. Dr. Subhadra Jalali in Para 4 of the reply to the interrogatories furnished by the complainant, has stated as under : "did not you after examining Mr. Raj Kumar Gupta further opine that Cornea transplantation was possible only in his left eye and advised Mr. Raj Kumar Gupta to arrange funds for undergoing such treatment. Answer : Yes".

In view of this positive answer, he submitted that right eye suffered due to retinal detachment caused by the surgery performed by Dr. Hardia. Hence, ''cornea transplantation'' was possible only in left eye. He further submitted that Cornea was damaged due to several surgeries.

In the affidavit, Dr. Subhadra Jalali had stated that "blindness is due to corneal scarring with old retinal detachment with proliferative vitreoretinopathy. The complainant No. 1-Raj Kumar Gupta was suggested penetrating Keratoplasty (Corneal Transplantation) with simultaneous Retinal Detachment surgery using temporary Keratoprosthesis. At present, with current medical knowledge, no advances have been made regarding Retinal Transplantation, hence Retinal Transplantation was not advised. "

ONE of the allegations made by the complainant is that he and his family members came across the advertisement inserted by respondent regarding the specialization in curing the disease of poor eyesight by excimer laser operation. Learned Counsel drew our attention to the diagram drawn by AIIMS wherein it is mentioned that there were spikes in sub-retinal space of the eyes. He claimed that these spikes were caused by R. K. Surgery performed by Dr. Hardia and have resulted in blindness. He further submitted that four surgeries were performed by Dr. Hardia on the following dates viz. : 18. 3. 1993, 29. 5. 1993, 16. 9. 1994 and on 28. 11. 1994.

HE invited our attention to the patient record case sheet of L. V. Prasad Eye Institute wherein it is mentioned central corneal scars C radial multiple corneal scars under the head diagnosis and also plenty of radial scars (30 to 40) on one eye and 18 radial scars on the other eye. He submitted that these were caused by negligent surgeries performed by Dr. Hardia. Submissions of learned Counsel for the respondent. Learned Counsel for the respondent submitted that the complainants have not produced any expert opinion on record to show any damage to the eye due to the surgery performed by respondent No. 1 at the respondent No. 2 hospital. The pamphlet of the respondent alleging expertise in performing laser surgery, produced by the complainants is only an advisory on post-operative care.

THOUGH learned Counsel for the complainant has submitted that four surgeries were performed, a perusal of the complaint itself indicates that only three surgeries were performed viz. on 18. 3. 1992, 28. 5. 1993 and 16. 5. 1994. In fact, there was no surgery performed on 28. 11. 1994. It was only the case history given by the complainant to Dr. Nagpal when he went to meet him.

THE report of special exam. /investigations given by M. and J. Institute of Ophthalmology, Ahmedabad, on 13. 3. 1995 indicates that he had more than 80% blindness and he was economically blind. This was after the surgeries performed by Dr. Hardia. It does not mention about 100% blindness. Dr. Hardia is a highly experienced Eye Surgeon with M. B. B. S. , D. O. M. S. , M. S. (Opth ). As can be seen from his bio-data, it gives details of the operation performed by him where it claims that he had performed 4,73,639 eye operations and totally attended 113 camps of Eye Keratotomy in radial and 213 camps in Cataract and IOL.

Dr. Rajendra Prasad Centre for Ophthalmic Sciences of All India Institute of Medical Sciences mentions about sudden ''dv'' (diminishing vision) in right eye since January 1995 and gradual ''dv'' since March 1995 in left eye. This falsifies the claim that surgery performed by Dr. Hardia resulted in total blindness.

LEARNED Counsel claimed that laser surgery does not adversely affect retina. The complainant''s whole case is based on assumptions and presumptions. None of the Institutes viz. , Civil Hospital and L. V. Prasad Eye Institute supports the contentions of the complainant. It was a case of slow ''dv''. The complainants themselves say that necessary tests were conducted and surgeries were performed by Dr. Hardia. The complainant No. 1 did not respond to the treatment.

THE claims made by the complainants are exaggerated. Findings : (1) The allegations of the complainant that after the surgeries performed by Dr. Hardia, he had gone to meet Dr. Nagpal of Retina Foundation, Ahmedabad, Civil Hospital Lumbni, Ram Ambika Hospital, Sidhartha Nagar, Nepal, L. V. Prasad Eye Institute, Hyderabad and lastly to AIIMS, New Delhi and that the doctors in these places had stated that surgeries performed by Dr. Hardia have caused irreparable damage to his eyes. Records produced before us do not show any evidence to indicate that doctors/hospitals have made any statement pointing out any negligence in the surgeries performed by Dr. Hardia.

(2) The allegations that Dr. Hardia had adopted money extracting practice was not proved as the complainant has not produced even single receipt or if money was given by cheque, cheque number and date has not been mentioned.

(3) The allegation made in the complainant''s affidavit is that Dr. Hardia has issued advertisement luring the patients to come to him through a pamphlet. On examination, it is found that the pamphlet in Hindi only mentions about ''dos and don''ts'' for the guidance of the patients, who have undergone eye surgeries.

(4) It is pertinent to note that complainants have failed to produce extracts from medical texts to support their contention that there was medical negligence on the part of Dr. P. S. Hardia in performing R. K. Surgeries and further to support their contentions that these surgeries have resulted in total blindness.

(5) The complainants have failed to produce expert evidence to corroborate the allegations of medical negligence against Dr. P. S. Hardia. The only piece of expert evidence produced by the complainants is the replies to the interrogatories of the replies by L. V. Prasad Eye Institute, Hyderabad, which are reproduced below :

"1. Did not Shri Raj Kumar Gupta son of Shri Ram Shankar Gupta resident of Village and Post, Babubel, P. S. Hardia, District Ballia (U. P.) consult you vide M. R. No. PO 101118, dated 26. 11. 1995 for undergoing treatment of his eyes? ans. I submit that in the answering to the interrogatory No. 1 it was Dr. Bansal, who had examined R. K. Gupta on 26. 11. 1995. I further submit that there is no doctor by the name of Dr. G. P. Rao in the L. V. Prasad Eye Institute.

Did not you after examining Shri Raj Kumar Gupta opine that his right eye had been totally damaged due to excessive/improper use of Laser-based technology for treatment of poor eyesight? ans. : No.

Did not you after examining Shri Raj Kumar Gupta opine that because of improper/ negligent treatment provided by the doctors at Dr. Hardia Advance Eye Surgery and Research Centre, Indore, the retina of said Raj Kumar Gupta''s eye had got perforated and that the right eye had been damaged beyond repair. Ans. : No.

Did not you after examining Shri Raj Kumar Gupta further opine that cornea transplantation was possible only in his left eye and advised Shri Raj Kumar Gupta to arrange funds for undergoing such treatment? ans. Yes. "

This evidence does not corroborate the contentions of the complainant in any manner. (6) Though the learned Counsel for the complainants has mentioned about radial scars on cornea and also about spikes near retinal space in the records of AIIMS and L. V. Prasad Eye Institute, he has not produced any evidence to prove that these were caused by the surgeries conducted by Dr. Hardia. He produced a certificate issued by office of Chief Medical Officer, Ballia on 1. 11. 1995 wherein it is mentioned that ''both eyes blind''. This certificate also stated that the patient is a permanently handicapped person but there is another observation made by the M. and J. Institute of Ophthalmology, Ahmedabad dated 13. 3. 1995 states that there is 80% blindness. Both these reports are post-operative. It is difficult to reconcile them.

(7) Though the complainants have claimed Rs. 23,30,000 towards the loss suffered by them, they have not produced even a single piece of evidence viz. , receipt or voucher. The complainant-Raj Kumar Gupta was a student studying B. A. It is unfortunate that he lost his eyesight despite strenuous efforts made by a highly qualified surgeon with the degrees of MBBS, DOMS, M. S. (Opth.), with more than two decades experience in various eye surgeries including Radial Keratotomy. Bio-data has been produced. It has not been disputed by complainants.

(8) In Ganga Ram Hospital v. D. P. Bhandari, II (1992) CPJ 397 (NC)=1992 (1) CPR 796 (NC), the National Commission held that medical professionals are expected to exercise and provide reasonable degree of skill and knowledge and also exercise reasonable degree of care in treating patients. A medical man rendering professional service for consideration is liable under Consumer Forum if he falls short of the standard of a reasonable skilful medical person in his field.

In Dr. Sr. Louie v. Smt. Kannolil Pathumma, I (1993) CPJ 30 (NC)=1993 (1) CPR 422 (NC), the National Commission held that for establishing negligence in diagnosis or treatment on the part of the doctor before Consumer Forum, the test is whether the doctor has been proved to be guilty of such failure as no doctor of ordinary skill could be guilty of it acting with reasonable care.

THE Supreme Court of India in Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, lays down the criteria for determination of the professional duty of a medical man in the following way : 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.

IN this case, it is beyond doubt that doctor is a highly qualified and highly experienced surgeon. He had followed the time-tested procedures for correcting the vision of a partially blind patient. There is no doubt that the treating surgeon has exhibited reasonable skill and care in performing the surgeries. The treating surgeon when consulted by the patient performed the following 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. He has also brought to his task a reasonable degree of skill and knowledge and exercised a reasonable degree of care. In short we can say that he has passed Bolam test as emphasized by the Apex Court in Jacob Mathew''s v. State of Punjab and Another, III (2005) CPJ 9 (SC)=iii (2005) CCR 9 (SC)=vi (2005) SLT 1=122 (2005) DLT 83 (SC)= (2005) 6 SCC 1. (9) In view of the foregoing analyses, we cannot attribute negligence on the part of the respondents. Accordingly, the complaint is dismissed. However, there shall be no order as to costs. Complaint dismissed.