Shyam Lal Ladia vs Dr. O.P. Nayak and Another

THIS revision petition filed under Section 21(b) of the Consumer Protection Act, 1986 directed against the impugned judgment and order dated 11.4.2012 passed by the State Consumer Disputes Commission, Bhopal (in short ''State Commission'') in FA No. 2674 of 2007 whereby the State Commission had dismissed the F.A. aforesaid preferred by the petitioner against the judgment and order dated 20.9.2007 passed by the District Consumer Disputes Redressal Forum Narsinghpur, M.P. (in short ''District Forum'') in CC No. 42 of 2005 whereby the District Forum allowed the entire claim of the respondents of Rs. 2,00,000/ -. Brief Facts:

For cataract of Right eye of the complainant was advised by the OP No. 1, Dr. O.P. Nayak for an operation. He got admitted in the Government Eye Camp at Gadarwara, but the doctor told him that he would treat him personally at OP No. 2 -Savitri Nursing Home. He was admitted at Savitri Nursing Home and operated there by OP1. He was admitted for 5 days. He could not see properly after the surgery, so he consulted Dr. O.P. Nayak who again treated by giving an injection. As his sight still did not improve, OP1 referred him to Dr. Gurdeep Singh at Hamidia Hospital, Bhopal. Dr. Gurdeep Singh demanded Rs. 5,000/ - towards the operation. As he could not afford it, he went back to OP1 who also demanded Rs. 20,000/ -. The complainant then consulted Dr. R.K. Mishra, 2013 (6) ALO Nov. 15th at Jabalpur who told him that his vision would not come back. His Right eye was ultimately removed. Alleging negligence in the cataract operation and infection in the eye due to poor quality of lens, he has sought a relief of Rs. 5,50,000/ -.

THE OP No. 1, Dr. O.P. Nayak, stated that he is an experienced and qualified ophthalmologist who examined complainant at the eye camp on 7.10.1996. He had cataract in both his eyes. As the cataract in his right eye had matured, he was advised surgery, but he did not get admitted in the camp. He came again later and was told that 7 lens had been donated by the Lions Club. Two were still left and one of them would be implanted in his eye free of cost. As Savitri Nursing Home had equipments like operating microscope etc., which were not available in the Civil Hospital at Gadarwara, the lens was implanted at Savitri Nursing Home. The surgery was successful and the complainant was advised to stay away from the sun and avoid smoking. Since he was a mason, he was also advised to avoid dust. However, he did not heed the instructions and started working which caused infection in the eye. He was given medication and watched for 2 days. When his condition did not improve he was referred to Dr. Gurdeep Singh at Hamidia Hospital, Bhopal. He was admitted at Hamidia Hospital at Bhopal but got discharged against medical advice. The complainant consulted him again on 27.11.1996, and he prescribed some medicines. He also referred him to Dr. R.K. Mishra at Jabalpur. Opposite Party No. 2, Dr. S.P. Khurchania of Savitri Nursing Home states that in 1996, Lion''s Club organized an eye camp and donated 7 lenses. One of these lenses was used in the cataract surgery of the complainant No charges were taken for the lens. The complainant was admitted for 5 days and had no complaints till his discharge.

THE District Forum allowed the complaint on three grounds (i) the tests required prior to cataract surgery was done one month back, (ii) It was a case of res ipsa loquitor as the OPs admitted that the complainant was suffering from endopthalmitis and (iii) referral letters did not mention the type of endopthalmitis.

AGAINST the order of District Forum, two cross appeals were filed in State Commission as Appeal No. 2325/07 by OPs and Appeal No. 2674/07 by the complainant. The State Commission heard both the Counsels and perused documents filed on record. The State Commissions allowed Appeal No. 2325/07 filed by OPs and dismissed Appeal No. 2674/07 filed by the complainant.

AGGRIEVED by the order of State Commission the complainant preferred this revision petition.

THE Advocate for petitioner and complainant were present. The application for condonation of delay heard, the justification was satisfactory and accordingly delay is condoned. Complainant''s main grievance was negligence in the operation and implantation of poor quality of lens which led to infection resulting in removal of his right eye. The State Commissions order clearly pointed out that the affidavit filed by Dr. Akhilesh Gumastra of Lions Club mentioned that the lenses were from Aurolab, Madurai, one of the best qualities. Those seven lenses were donated in the memory of his mother. The six other patients who have received the lenses did not show any infection. Therefore, infection was not due to quality of the lens. The complainant has not filed any evidence to prove that the lens were of low quality.

EVEN the pre -operative laboratory tests and medical check -up which were conducted one month prior to the surgery were normal. Hence, there was no necessity to repeat the test again unless the patient had any signs or symptoms which is not negligence.

THERE were no hospital case papers or treatment records for the period the Complainant was in Savitri Nursing Home. There was no discharge card. The opposite party has handed over all medical records to the complainant. The postoperative prescription dated 17.11.1996 clearly mentions that the complainant had vision of 6/24. OP referred the complaint to Dr. Gurdeep Singh at Hamidia Hospital, Bhopal and Dr. R.K. Mishra, Emeritus Professor in Medical College, at Jabalpur for management of infection like endopthalmites; but it could not be controlled and ultimately the Right eye was removed. Therefore, referring a patient to higher centre is not a negligent act. We have gone through several medical texts, literature and reported articles in the journals which revealed that the endophthalmitis is a known complication of cataract surgery. As per medical literature on various EVS studies the Post -operative endophthalmitis is defined as severe inflammation involving both the anterior and posterior segments of the eye after intraocular surgery. Typically, postoperative endophthalmitis is caused by the preoperative introduction of microbial organisms into the eye either from endogenous source like the patient''s normal conjunctiva and skin flora or from contaminated instruments. Once organisms gain access to the vitreous cavity, overwhelming inflammation is likely to occur, making rapid recognition, diagnosis, and treatment critical in optimizing final outcomes. Although most cases of postoperative endophthalmitis occur within 6 weeks of surgery, infections seen in high -risk patients or infections caused by slow -growing organisms may occur months or years after the procedure. The other referred journal articles are: (i) Review Article -ISRN Orthalmology Volume 2011 tided as "Post -Operative Endophthalmitis following cataract Surgery in Asia" by authors Jin A. Cboi and Sung Kun Chung.

(ii) "Post -Operative Endophthalmitis" Author: William Lloyd Clark, MD; Chief Editor: Hampton Roy, Sr. MD. from http://emedicine.medscape.com/ article/1210260 -clinical#a0218

IN this case the OP was a qualified and experienced ophthalmic surgeon. Also there was no iota of evidence that other six patients have any signs of endophthalmitis who were undergone cataract surgery and lens implantation. Hence, there was no evidence of cluster of infection.

INTRA -ocular infection has always brought disrepute to the ophthalmologist and this problem is not only rampant at eye -camps but also in hospitals, which include the five star ones. Only surgeon who does not have endophthalmitis is the one who does not operate. The problem is general and it is not the surgeon who is to be blamed although he is responsible for surgery. Despite the best possible care, mishaps cannot always be avoided. In view of aforesaid findings and discussions we are of considered view that OPs acted as per standards of practice and there was no negligence or deficiency in service. Therefore, the revision petition is dismissed. No order as to costs.