Subhendu Majumdar vs Ashish Kumar Bhattacherjee

AGGRIEVED by the dismissal of his complaint ( SC Case No.175/O/97) by the West Bengal State Consumer Disputes Redressal Commission, Kolkata vide order dated 28.01.2005, Subhendu Majumdar has filed the present appeal. The complaint was filed before the State Commission alleging medical negligence and deficiency in service on the part of the opposite parties i.e., Dr. Asish Kumar Bhattacharjee Opthalmologist OP No.1 ( to be referred as Opthalmic Surgeon) and K.D.Cure S.C.Das Memorial Medical & Research Centre OP No.2 ( to be referred as Nursing Home) in giving treatment to the complainant viz., in relation to cataract surgery of his right eye with Intra Occular Lens implant on 15.10.96 and during the post surgery period, claiming a total compensation of Rs.19,05,529.30/-

BEFORE we dwell on the disputed questions / controversy raised in the present case we may in nutshell note the undisputed facts. The complainant is a practicing advocate in the District Courts of Alipore ever since 1984. In August 1996 he went to Sankara Nethralaya, Chennai for the removal of cataract from his right eye. The doctor after examination of his eyes suggested that T.C.Cryo was required to be done before conducting the cataract operation in order to prevent retinal detachment. Accordingly, the complainant underwent the said procedure / T.C.Cryo at Sankara Nethralaya without any complication. He was advised to return back for the cataract surgery in October 1996 during puja holidays. However, after his return to Calcutta, the complainant under the advice of his client consulted OP No.1 Opthalmologist and being impressed with his advice, decided to undergo surgical procedure for cataract removal and intra ocular lens implant at the hands of OP No.1 Opthalmologist. After requisite tests, the surgery was scheduled at OP No.2 Nursing Home on the morning of 15.10.96. Accordingly, complainant got admitted in OP No.2 Nursing Home in the evening of 14.10.96 and underwent a cataract removal surgery and intra ocular lens implant at the hands of OP No.1 in the morning of 15.10.96. After his stay for about 24 hours in the nursing home, he was discharged from the OP No.2-nursing home in the morning of 16.10.6. After reaching home in the evening, the complainant felt discomfort, headache, vomiting etc, for which the relations of the complainant contacted OP No.1 who going by the above noted clinical symptoms reported to him told them that complainant was suffering from acidity and indigestion and, therefore, advised the complainant / relations to consult general physician by the name of Dr.S.K.Neogi. Accordingly, complainant consulted the said physician who prescribed some antacids and injection like calmpose. Even after taking the said treatment, the condition of the complainant did not improve and he continued to have pain in his operated eye and headache etc. Therefore, OP No.1 was again contacted and was requested to see the complainant at his residence but OP No.1 did not visit. On the morning of 18.10.96 complainant saw OP No.1 at his clinic and after examination OP No.1 noticed that complainants operated eye was infected and he was suffering from Endophthalmitis and, therefore, advised the complainant to undergo emergency vitractomy of his right eye at Sankara Nethralaya. On the same evening, the complainant flew to Chennai and after reaching there, the complainant contacted Sankara Nethralaya authorities and was taken to the emergency ward where he was examined by the doctors including senior doctors / specialist and it was noticed that he complainant was having pain, redness, watering and decreased vision in the right eye for two days. He was diagnosed to have post operative endophthalmitis. As the Intraocular pressure in the right eye of the complainant was found to be on higher side, complainant was advised ultrasound which showed plenty of low reflective echoes in the vitreous cavity with incomplete posterior vitreous detachment. However, retina was found to be attached. Complainant was given intravitreal vancomycin and Amikacim alongwith decadron besides certain other antibiotics, steroids and drugs. On 23.10.96 vitrectomy with intraocular lens removal procedure was performed on the complainant under general anaesthesia. The vitreous sample sent during the surgery showed gram negative bacilli growing on culture on the first post operative day which was identified as Pseudomonos aeruginosa. On 06.11.96 second procedure vitreous lavage was performed and thereafter the complainant was discharged from the hospital. However by that time the complainant had lost his right eye, rendering him a visually impaired person as a result of which the complainant has suffered pecuniary and non pecuniary damages. Now we come to what can be termed as instances of medical negligence or deficiency in service as put forth by the complainant in the said treatment at the hands of OP No.1 at the nursing home of OP No.2 or post surgical management of his right eye. Though in his complaint, the complainant has tried to paint a picture that under the advice of his client he consulted OP No.1 and had also agreed to get the procedure done by him under certain misrepresentation / belief about the competence and expertise of OP No.1 but perhaps in his heart he was not convinced of the same. We must reject this plea of the complainant at the outset because to get the procedure through OP No.1 was the voluntary decision of the complainant, may be based on the advice of certain client or his own belief. In any case the complainant has made no grievance either about the qualification, skill or expertise of OP No.1 in conducting such a procedure. Learned counsel for the appellant also did not raise even a finger in that behalf.

Going by the chronology of events, the first and foremost instance of medical negligence and deficiency in service put forth by the complainant is in regard to the complainant having contacted infection and complication of opthalmitis which is attributed to the faulty procedure adopted by the doctor in conducting the surgery and the unsterlized condition prevailing in the operation theatre or the room of the nursing home where the complainant stayed after the procedure. b. The next instance of alleged negligence is that soon after he underwent the surgical procedure, he felt severe pain in his operated eye and despite making the complaint to the nursing home, the OP No.1- doctor did not visit him during the whole day of 15.10.96.

c. OP No.1- doctor released / discharged him pre maturely from the nursing home in the morning of 16.10.96 though the complainant was still having pain in his operated eye. d. OP No.1 neglected when informed to him on phone in the evening of 16.10.96 and responded casually by stating the complaint as relatable to indigestion / acidity which was required to be treated by a general physician.

e. OP No.1 neglected to visit the complainant at his residence on 16.10.96 to 17.10.96 despite he having been repeatedly informed about the serious condition of the complainant. f. OP No.1 showed a casual approach even on 18.10.96 when the complainant visited him and simply told him that complication had developed for management of which he should immediately go to Sankara Nethralaya, Chennai.

WE have heard the learned counsel for the parties and have considered their submissions. As noticed above, it is not disputed that after surgical procedure for the removal of cataract and intra ocular lens implant in his right eye at the hands of Op No.2, the complainant suffered the complication what is described in medical terms as Endopthalmitis. Therefore, the crucial question which will decide the fate of present appeal is whether the onset of the said complication was a result of any act of omission or commission as alleged by the complainant on the part of the opposite party no.1 which in turn can amount to negligence and or deficiency in service. A great deal of arguments have been advanced from the side of appellant in order to assail the finding of the State Commission as not based on correct and proper appreciation of the respective pleas and the evidence and material put forth by the parties on record. In any case it is contended that findings of the State Commission are not in consonance with the law as laid down by the Apex Court and this Commission in several of its decisions. On the other hand, learned counsel for the respondents have not only supported the findings and order of the State Commission as fully justified but has advanced several additional contentions in order to rule out any negligence or deficiency in service on the part of the opposite parties.

THE question as to when a medical professional can be held guilty of medical negligence / gross medical negligence and culpable medical negligence, has been considered by the Supreme Court in several of its decisions starting from Bolam V Frirn Hospital Management Committee ( 1957) 1 W L R 582, Spring Meadows Hospital & Anr. V Harjol Ahluwalia (1998) 4 SCC 39, Indian Medical Association V. V.P.Shantha & Ors. (1995) 6 SCC 651, Dr.Laxman Balkrishna Joshi V. Dr. Trimbak Bapu Godbole & Anr. (1969 (1 SCR 206, Jacob Mathew Vs State of Punjab & Anr. On a scrutiny of the said cases and some other case, the Supreme Court in the case of Kusum Sharma & Others Vs Batra Hospital & Medical Research Centre 2010 (2) Scale laid down the following principles which may be kept in view while deciding the question whether medical professional is guilty of negligence or not: a. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. b. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.