SILVERLINE EYE HOSPITAL & ANR. vs DULAL CHANDRA BAG

The complainant, Dr. Dulal Chandra Bag, 72 years'' old, and a highly qualified Academician, consulted OP 1/Silverline Eye Hospital, for his eye problems. OP 2, Dr. Sandeep Mitra examined and advised the patient for cataract operation of left eye, by phaco surgery. As per the advice of OP 2, a series of tests were conducted and on 7.6.2005, the patient got operated at OP1. OP 2 performed left eye phaco surgery with IOL implantation. On 8.6.2005, OP discharged the patient. The total package charges were in the sum of Rs.16,500, which was paid by the complainant. At the time of discharge, OP advised the patient to apply certain eye drops, no bandage done. He has not advised to wear dark glasses and an eye guard done sleep. The patient was advised to attend on 10.6.2005 for follow up check-up. Accordingly, the patient went to OP 2, who prescribed medicines and advised the patient for re-admission again. OP did not disclose the condition of his eye on that day. During the stay of the patient in the hospital, the nurse put corrosive liquid in the eye and caused damage to the operated eye. The doctor was not an employee but a Consultant of the hospital, violated the medical norms. 1. Being dissatisfied with the treatment given by the OP, the complainant filed the complaint, in year 2005, before the Consumer Disputes Redressal Forum, Unit I, Kolkata (hereinafter referred to as "District Forum). The District Forum allowed the complaint vide its order dated 21.09.2012 and directed the OP-1 and 2 to pay Rs. 7,50,000/- jointly and severally and Rs.10,000/- towards mental agony and costs.

Aggrieved by the order of the District Forum, the OPs filed appeal on 08.10.2012 before the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as "State Commission"), which was dismissed with costs of Rs. 5,000/- vide order dated 30.05.2014. Hence, against the impugned order, the OP preferred this revision petition.

We have heard learned counsel for both the parties. The counsel for petitioner initially argued on the point of delay of 54 days'' in filing this revision. We are satisfied with the reasons stated in the application for condonation of delay, thus accordingly, the delay is hereby condoned.

On merits, he argued that patient suffered endophthalmitis of left eye; it was not due to negligence of OP-2. He has brought our attention to the medical records and various investigation reports.

We have requisitioned the entire file from the lower fora. On careful perusal of the medical record, it reveals that (page no. 77 of record of State Commission) on 25.05.2005, the OP investigated the patient. Biometry was done, PPBS was 125 milligram, ECG was normal, BP 155/85 and OP advised Phaco + (F) 10L (L/E) to be done on 07.06.2005 and OP informed the total charges of Rs. 16,500/-. Therefore, it was a false submission of complainant that, he was not informed about the operation. The hospital admission-sheet shows signature of A.N. Parui, brother in law of the complainant. The consent form was signed by the patient and witness on 07.06.2005, but doctor''s signature and portion of physician certificate, being kept blank. We do not find any major lapse on the part of OPs for taking consent.

The Learned counsel for the complainant submitted that, the patient was 72 years old and was a reputed Academician. The counsel argued on various points like, the doctor was not an employee but a Consultant of the hospital. The nurse put corrosive liquid in the eye and caused damage. He questioned about, whether the doctor possessed requisite qualification, as there was no display of registration number on the prescriptions of Dr.Sandeep Mitra. Therefore, OP-2 has not followed the Code of Ethics Regulations, 2002, prescribed by Medical Council of India. The documents were prepared in one sitting and were fabricated. Pre-operative diagnosis was not verified by the OP-2, but treated the patient. Counsel further submitted that, the patient had paid Rs.300/- for biometry/ ECG/LNDL tests, but LNDL was not performed. The observation made by District Forum about "un-corroborative documents" is correct. The OP detected cataract without testing the vision and ocular pressure. The consent was defective. The OP charged extra money, more than the package charges; the hospital authorities have violated the norms of cataract. The post-operative discharge certificate reveals discrepancy in the date.

This bunch of arguments do not impress upon us at all. The counsel for complainant filed medical literature from Clinical Ophthalmology by Jack J. Kanski titled "Acute postoperative endophthalmitis" , in which it is clearly stated as under: "The source of infection usually cannot be identified with certainty.It is thought that the flora of the eyelids and conjunctiva are the most frequent source, including contamination via incisions in the early postoperative stages.Other potential sources include contaminated solutions and instruments, environmental air, and the surgeon and other operating room personnel."

The counsel relied upon the book on ''Cataract Surgery- Chapter "Postoperative Endophthalmitis". Counsel for complainant relied upon the judgments of this Commission in case titled as " S. Thamil Selvi Vs. Dr. Sooriya Kala & Anr. , II (2007) CPJ 216 NC" and " Subhendu Majumdar Vs. Ashish Kumar Bhattarcharjee (Dr.") & Anr., III (2011) CPJ 46 (NC)".

We have perused the observations made by both the fora below. The District Forum, observed as follows:

We have gone through the pleadings of the parties, evidence and documents in particular and we find that complainant has corroborated the petition of complaint by adducing evidence and filing documents.Evidence of O.P. No. 1 is to show (vide

para 6) that "Eye drops are administered in the affect by the nursing staff as per direction of the treating doctor" and this piece of evidence amounts to admission showing negligence on the part of O.P. no. 1 and O.P. no. 2 as well.From the materials on record we find that O.P. no. 2 suggested complainant to consult Rotary Sankar Narayana Netralaya at Salt Lake after expressing his liability to restore vision of the left eye of complainant and the discharge summary of Rotary Sankar Narayana Netralaya at Salt Lake goes to show the impairment of left eye of complainant after operation by O.P. no. 2.Having regards to the aforesaid situation we cannot keep apart the opinion of attending doctor is quite competent enough and we should not disbelieve this prognosis."

The State Commission applied doctrine of '' Res Ipsa Loquitur'' and observed as; In this connection, the allegation of the complainant about the drop of some corrosive liquid by the nurse at the night in the operated eye assumes much importance. The OP No. 2 also admitted in his evidence that the complainant had complained of putting some eye drops in the operated eye causing stinging and burning sensation in the last night, at the time of examination by OP No. 2 on 13/06/05. There is, therefore, no doubt that when the complainant remained in the custody of the OP No. 1 the serious condition of the operated eye occurred due to mishandling by the staff of the Hospital, otherwise the condition of the operated eye would not have taken such a serious turn. In this regard we are of the considered view that the Doctrine of Res Ipsa Loquitur is squarely applicable, in as much as, the complainant remained under the care and supervision of the OPs being admitted in the Hospital. The infection, therefore, undoubtedly developed while the complainant remained admitted in the hospital and the OPs failed to manage infection/complication in the operated eye although the patient remained admitted in the Hospital for some days under the advice of OP No. 2.

We are rather surprised to note the observations made by the District Forum and the State Commission. The District Forum concluded the negligence on the basis of OP-2, referred the patient to Shankar Narayan Netralaya, whereas, the State Commission observed that, putting of eye drops caused stinging and burning in the left eye, hence applied the principle of '' Res Ipsa Loquiter'' . We have perused the case summary issued by Rotary Narayana Shankar Netralaya, the patient underwent VTI + IOL removal under local anesthesia in the left eye, on 15.06.2005, , retinal detachment was suspected on 28.06.2005. The Shankar Netralaya did not mention about negligence caused by the OP.

The complainant also filed the complaint with the Government of West Bengal, Health Department against the OP. An inquiry was conducted by Dr. S. Bute, ADHS (Ophth.). The report is, as below: "It is true that the patient had lost his vision on left eye after post-operative operation but at this moment, it is difficult to ascertain the cause of failure. As because, it is clear that Silverline Nursing Home is a reputed eye care unit and Dr. Mitra is really very sincere, skilled and expert ophthalmologist, experienced to do the phaco surgery nicely. There are no discrepancies observed in regard to pre and post-operative treatment with management, sterilization procedure noted to be well maintained.However, loss of vision is a fact, but may not be a reason of defective operation or misbehavior from sisters.It is expected to be the ground of non-infective reaction created from either use of IOL or any other non-sterile medication of unknown origin. Though loss of vision is a painful matter, yet, it has no basis to improving the allegation.We may give stricture to surgeon for taking more care in respect giving pre and post-operative medication and also during issue of release of order.In regard to behavior of on duty Nursing staff and also other staff, we may direct the Nursing Home authority to look in to the matter and do the direct vigilance over them, every time".

It is pertinent to note that, on 10.6.2005, the OP-2 noted exudates over the IOL and the anterior chamber, hence re-admitted the patient for supervision and on 13.6.2005 performed Anterior Chamber Fluid aspiration for culture and sensitivity test and gave Intra-Vitrial injection of antibiotics. Therefore, in our view, referring the patient to higher centre is not negligence and burning/ stinging sensation, after putting eye drops is not negligence, it should not be considered as "res ipsa loquitor".

The complainant''s main allegation in this case is about deviation from ordinary professional practice, we feel, it is worth to refer to Lord President Clyde in Scottish''s case Hunter v Hanley 1955 SC 200 , wherein it has laid down the following requirements to be established by the patient to fasten liability in case of negligence committed by a doctor:

"To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course, the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on the pursuer to establish these three facts, and without all three, his case will fail." To establish liability in the medical negligence, it must be shown; (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course, in fact adopted, is one, which no professional man of ordinary skill would have taken, had he been acting with ordinary care.

Also a catena of judgments observed that, a medical practitioner cannot be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment, in choosing one reasonable course of treatment, in preference of another. A medical practitioner would be liable, only where his conduct fell below that of the standards of a reasonably competent practitioner, in his field. > 1. In the instant case, we do not think that the OP-2 has deviated from normal practice. He has performed cataract surgery, done proper follow up. OP-2 suspected endophthalmitis in the left eye, hence aspirated the Anterior Chamber and advised C & S, further injected antibiotic also, suggested urgent vitrectomy (VIT). The patient got it done at Shankar Netralaya on 16.6.2005. The enquiry report does not support the contention of complainant. In our opinion, OP treated the patient, with a reasonable care and as per standards of practice. The acute post-operative endophthalmitis is a dreaded infection, a known rare complication after cataract surgery, the OPs are not liable in this case. Therefore, on the basis of forgoing discussion, we set aside the orders passed by both the fora below, and allow this revision. Consequently, the compliant is hereby dismissed.