S S VATS vs AVTAR SINGH GILL

BY way of this complaint the complainant is seeking a compensation of Rs. 5,05,000 from OP on account of medical negligence committed by the OP in operating on his left eye for removal of cataract due to which the vision in his left eye has been damaged which is now not curable.

BRIEFLY stated, the allegations of the complainant are that the complainant, who was a Law Professor at Delhi University and also a practising Advocate, approached OP Dr. Avtar Singh Gill with a complaint in his left eye in May 1999. After examination OP told him that he had developed cataract in his left eye and that he could remove the same by the stitchless PHACO method. Complainant suffered from diabetes and blood pressure, which were confirmed by OP through blood sugar test and by measuring the blood pressure. However, he told the complainant that he could do the surgery even in these given circumstances. Though the complainant resisted, OP insisted on doing the surgery at the earliest despite uncontrolled diabetes and blood pressure and ultimately, the surgery was performed on 26. 5. 1999 and complainant paid Rs. 10,000 for the same. Complainant remained under the treatment of OP for about two months. Complainant felt irritation in the operated eye. It was not possible to look into the sun and the complainant felt as if the eyeball of the eye had swollen. When the complainant did not get any relief from the treatment of OP, he consulted another eye surgeon Dr. Neeraj Chadha, who opined that the aperture of operated eye was deformed during the surgery. Dr. Chadha advised removal of the thick layer from the operated eye with the help of laser. It is further stated that the OP had not operated with PHACO method as five stitches were still there in the operated eye.

According to the complainant he has suffered irreparable damage to his left eye due to the negligence committed by the OP as the vision in this eye is very low and irritation persists. This eye cannot be opened fully and he has a feeling of a swollen eyeball.

OP has denied all the allegations claiming himself to be renowned and well qualified doctor. It is denied that he told the complainant that the surgery would be done by PHACO method. Rather he told the complainant that since he was patient of diabetes, the procedure of P. C. IOL cataract surgery would be more appropriate and the complainant agreed to this advice and the surgery was conducted by this method only. As to diabetes and blood pressures, it is stated that proper dosage of medicine were given to the complainant to control his blood sugar as well as the blood pressure before the surgery and all other precautions necessary for the operation were taken. It is further stated that the operation was highly successful and the complainant has not filed any expert evidence to prove any negligence on the part of the OP whatever vision is less, is because of long-standing diabetes. The final result of visual outcome in cataract surgery mostly depends upon the stage of the vitreous body and the retina. The stage of diabetic retinopathy and hypertension retinopathy is important. At the binding complication of diabetic retinopathy and hypertension retinopathy is well established in medical literature and textbooks. According to OP, the complainant was suffering from these diseases and was advised follow-up but he did not adhere to the medical advice and the follow-up. Parties have filed their evidence by way of affidavits.

COMPLAINANT has produced and proved the following documents regarding the treatment, tests etc. : (i) Annexure A (Colly)-prescription and treatment card, etc. at the clinic of the OP. (ii) Annexure B-treatment and prescription at the clinic of Dr. Neeraj Chadha, Eye Surgeon. As against this the OP has claimed that he is a highly qualified MBBS, MD (AIIMS) MS, O. R. A. (USA), MIJ of Japan and is Master of Eye Surgeon and was formally Eye Surgeon in AIIMS, New Delhi and is a renowned Surgeon and is known for his surgery for the last 20 years and in his operations he has successfully removed cataracts and spectacles of all minus numbers from 0. 5 to 0. 30 and his success rate has been well known throughout India. That he has done the present surgery with all his skill and efficiency and all the inputs involved in the surgery have been of world class standards and as such OP has not committed any negligence nor had the same been explained by the complainant. That the OP has never promised that he will operate the complainant adopting the procedure of Phaco-Emulsification technique and it was told that since he was a patient of diabetes it would be proper that the procedure of P. C. IOL, Cataract Surgery be adopted.

AS to the concept of medical negligence the criterion drawn from various decisions starting from Bolam''s case and followed by catena of decisions of Supreme Court are as under: (i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practises? (ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence? (iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures? (iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate? (v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in? (vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication? (vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?

References: (i) Bolam''s case reported in (1957) 2 All. ER 118, 121 D-F. (ii) Sidway v. Bethlem Royal Hospital Governors and Others, (1985) 1 All. ER 643. (iii) Maynard v. West Midlands Regional Health Authority, (1985) 1 All. ER 635. (iv) Whitehouse v. Jordan and Another, (1980) 1 All. ER 650. (v) Indian Medical Association v. V. P. Shantha and Ors. , III (1995) CPJ 1 (SC)=i (1996) CLT 81 (SC)= (1995) 6 SCC 651. (vi) Jacob Mathew (Dr.) v. State of Punjab and Anr. , III (2005) CPJ 9 (SC)=iii (2005) CCR 9 (SC)=vi (2005) SLT 1=122 (2005) DLT 83 (SC)= (2005) SCC (Cr.) 1369.

AFTER perusing the entire medical record particularly the prescriptions and sugar level as well as blood pressure noted down, we find that the sugar as well as blood pressure level of the complainant was within the permissible limit. The aperture of operated eye was deformed during the surgery and it was rectified by way of removal of thick layer from the operated eye with the help of laser. Thereafter the vision became very low and eye could not be opened fully and complainant was having a feeling of swollen eyeball. It appears that may be due to some lack of operating the eye, through the sugar level was 180, which is known medical standard all over the world but the development of aperture of operated eye was deformed due to some shortcoming or imperfection in the operation. Taking overall view of the matter and taking into the consideration the qualification and vast experience of the OP doctor and also the above lapse we deem that a lump sum compensation of Rs. 25,000 would meet the ends of justice.

Payment shall be made within one month from the date of receipt of this order.

COMPLAINT is allowed and disposed of in aforesaid terms. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forums and thereafter the file be consigned to Record Room. Complaint allowed.