SUKHDEV GILL vs ROTARY EYE HOSPITAL

-WE propose to dispose of both these appeals by this order because they are directed against the decision of the District Forum, Una in Consumer Complaint No. 244/2001 dated 1. 4. 2005.

COMPLAINT filed by Shri Sukhdev Gill, hereinafter referred to as the ''complainant'', has been allowed in the following terms: "22. From the entire conspectus of the case and documents placed on record, we hold that the opposite parties have been negligent, thereby being deficient in rendering service to the complainant. We, therefore, order and direct the opposite parties jointly and severally to pay to the complainant an amount of Rs. 1,00,000 (Rupees one lac only) within one month from the date of receipt of copy of this order. Having failed to make the payment within the stipulated period, the complainant would be entitled for future interest @ 9 per cent per annum from such date till final payment of the amount. The opposite parties are further directed to pay Rs. 1,000 as cost of litigation to the complainant. The complaint stands allowed, accordingly. Certified copy of this order, be supplied to the parties, free of cost. The file after its due completion, be consigned to record room. "

He has filed the appeal alleging that compensation awarded is on lower side, whereas the other appeal has been filed by the Rotary Eye Hospital and Dr. Rajat Mathur, hereinafter referred to as the ''opposite parties'', as according to them, they are not liable for payment of any compensation and have thus prayed for allowing the appeal.

Complainant is an Advocate who was earlier practising at Chandigarh and then shifted to Una. According to him, he was earning Rs. 15,000 per month. Rotary Eye Hospital, Maranda, Palampur, has a branch, according to him, at Dhusara, Tehsil Amb, District Una. He approached this Branch on 14. 7. 1999, where opposite party No. 3 Dr. Rajat Mathur examined him and declared that cataract had developed in the left eye which is required to be operated upon. A squint was also noticed by the doctor. Per complainant, opposite party No. 3 advised him to first undergo squint operation and later on for cataract operation. Thus on 14. 7. 1999, he was admitted and on 15th he was operated upon and was discharged on 16. 7. 1999. Complainant''s further case was that he was having severe pain but there was no doctor to attend to him and ultimately an attendant in the Hospital who was probably a Chowkidar gave injection, of some pain killer. After removal of bandage on 16. 7. 1999, complaint was advised by opposite party No. 3 to come again on 24. 7. 1999 for removal of stitches. He paid in all Rs. 1375 as operation charges as also for Red Cross tickets. The attendant accompanying the complainant observed that squint had not gone, and doctor was informed accordingly in that behalf, who held out that operation was unsuccessful and second operation was required. Only thereafter cataract will be removed by operation. Complainant in the month of August, 1999 felt that eye sight of left eye was getting weak, he went to the Hospital where probably Dr. Amit Kumar examined him who felt perturbed after such examination and referred him to opposite party No. 3 Dr. Rajat Mathur. This doctor on examination informed the complainant that he should forget about the left eye forever, on hearing this, complainant was very badly disturbed and he felt that professionally he is doom. He would not be able to look after his daughter and other family members.

IN the aforesaid background, as per complainant, he visited number of private and Government Hospitals at Sohana, Jalandhar, Amritsar, Patiala, P. G. I. , Chandigarh as well as District Hospital, Una, etc. There was consensus of opinion amongst all the doctors that retina was detached. This as per the complainant was due to carelessness and negligence of the opposite party No. 3 while operating for removal of squint, and it resulted in the loss of vision upto 99%. In this background, initially he filed a complaint claiming compensation of Rs. 18,50,000 but later on through amendment that was allowed by the District Forum, he restricted his claim to Rs. 4,85,000. Opposite parties when put to notice have contested the claim of the complainant. According to them, on examination it was found that right eye of the complainant was 6/60 and with glasses 6/12. The vision of left eye was almost zero and blind by standards of World Health Organisation. Complainant had also given history of his treatment at Chandigarh. Left eye was having no vision except the perception of light but the projection of rays was inaccurate. There was squint in this eye having outward deviation of 30 degree. It was found in fundus that there was old retina detachment in the left eye. Thus, he was advised that there was no chance of vision in the left eye, but squint can be corrected by cosmetic surgery that too for reasonable time to which the complainant agreed. It was in this background that operation was conducted on 15. 7. 1999 and he was discharged on 16. 7. 1999. Operation was successful and complainant was advised post-operation care and medication. Per opposite parties the complainant had the knowledge that the retina of his left eye was detached long ago which was specifically told to him by the opposite parties, and retina detachment factor was not disclosed in the complaint. Further, according to the opposite parties it was the complainant who wanted to undergo cosmetic squint correction surgery. Nothing was charged for diagnosis and only material cost was charged which was only dispensary charges, etc. Allegation of opposite party No. 3 having informed the complainant regarding operation being unsuccessful was denied. However, his having visited the Hospital on 25. 8. 1999 was admitted, and medicines were advised to him. It was reiterated that detachment of retina was prior to the operation for removal of squint and the complainant was well aware in this behalf.

IN the aforesaid background, complainant has placed on record the prescription slips from different doctors, clinics and hospitals. A perusal of all those clearly indicates that detachment of retina is shown therein. Mention of squint being there is also noted in these prescription slips. Now the question arises as to whether the appellant has been able to show that the detachment of retina was due to negligence and carelessness during the course of squint operation or it was already existing in point of time. If it is found that it is due to acts of omission and commission/negligence/carelessness on the part of opposite party No. 3, complainant needs to be adequately compensated and if the finding is otherwise, then the consequence would be obvious. In case of medical negligence, it is the primary duty of a party like complainant to prima facie establish from some reliable, cogent and acceptable evidence by way of expert opinion or some authorized medical text that what was the line of treatment that was required to be given and what was the treatment actually given as in the present case. There has to be some expert opinion, and it is for a party like complainant in these appeals to discharge this onus. A duty is enjoined upon the complainant to have placed on record some expert evidence/opinion either in the shape of affidavit and/or statement of some doctor and/or from some authorized text books to show negligence on the part of the opposite party No. 3 while performing the operation for removal of squint.

WE have examined the record minutely, excepting his own affidavit and the prescription slips as already noted, there is no expert opinion/evidence is placed on record by the complainant.

FACED with this situation, Mr. Seth, learned Counsel for the complainant urged that plight of his client can be better imagined than explained. Because according to him due to sheer carelessness and negligence on the part of the opposite party No. 3 doctor, the professional career of his client has been ruined whose income has come down from Rs. 15,000 to Rs. 4,000 per month. He had to engage a junior to whom Rs. 2,000 per month is being paid. We may mention that affidavit of this junior is there on record which says that he was working with the appellant since 1999 and was being paid Rs. 2,000 per month by the complainant for attending to his work. So far complainant''s earning of Rs. 15,000 per month is concerned, we find no evidence, whatsoever, in the shape of income tax returns or accounts or any other evidence to show that what was his actual income. In case of negligence by professionals generally and not necessarily confined to doctors, opinion of Mcnair, J. in Bolam v. Friern Hospital Management Committee, 1957 (1) WLR 582, in the following passage is relevant in this case: "where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. " (Charlesworth and Percy, ibid. , Para 8. 02)"

The Bolam test was followed in his speech by Bingham, L. J. in Eckersley v. Binnie, (1988) 18 Con. LR 1 (79) in the following words: "from these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet. " (Charlesworth and Percy, ibid. , Para 8. 04)"

In Halsbury''s Laws of England (Fourth Edition, Vol. 30, Para 35), degree of skill and care required by a medical practitioner is so stated in the following words: "the practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis 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 no professional man of ordinary skill would have taken had he been acting with ordinary care". Above said three tests have also been stated as determinative of negligence in professional practice by Charlesworth and Percy in their celebrated work on Negligence (ibid. , Para 8. 110)".

THE above decisions were followed by the Hon''ble Supreme Court in the case of Jacob Mathew (Dr.) 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)=2007 MLR 1, while allowing the petition of the appellant before it. A simple lack of care, an error of judgment or an accident, are not proof of negligence. But so long as a doctor follows a line of treatment/practice acceptable to the medical profession of that day, he cannot be held liable for negligence.

WE specifically asked Mr. Seth, learned Counsel for the complainant as to what is the expert evidence/opinion produced by his client so as to show that treatment given by opposite party No. 3 was not in accordance with the practice accepted as proper by responsible body of medical men, he could only refer to the amended complaint, affidavit of his client, his junior, and prescription slips of different hospitals, doctors, nursing homes etc. We have examined all the prescription slips, none of these speak anything to suggest that the detachment of retina was due to either negligence or carelessness on the part of the doctor while performing operation for removal of squint which was only meant for cosmetic surgery. Nor any such opinion could be referred to on behalf of the complainant by his learned Counsel. Faced with this situation, Mr. Seth, learned Counsel tried to press into service the doctrine of res ipsa loquitur. We are sorry to say that this is not attracted to the facts of this case as will be evident from the material on record. In this behalf we may point out that the doctor Rajat Mathur has filed his detailed affidavit wherein he has reiterated his stand. Record shows that complainant got Dr. Rajat Mathur, opposite party No. 3, summoned with original record for his cross-examination and also the refractionist Dr. Sandeep Jain who was working as Refractionist in the Hospital at the relevant time. In cross-examination on behalf of the complainant by his learned Counsel, Dr. Rajat Mathur has placed on record out-patient record of the complainant. It is Annexure R. 1 at page-85 of the complaint file. On it encircled portion red marked ''a'' on fundus, he has found old RD (Ratina Detachment) Poor Visual prognosis explained. Annexure R. 2 is the copy of Operation Notes whereunder ''operative Procedure'', Cosmetic Squint Correction (L) is given. When a reference is made to the cross-examination of Dr. Rajat Mathur, he has denied the suggestion on behalf of the complainant that words ''fundus, old retina detachment, poor visual prognosis explained'', in Annexure R. 1 were added afterwards. He has further stated that there was mild cataract at the time of operation, but since the patient was not having vision, therefore, much attention was not given. He admits that this fact is not mentioned in the out-patient report. He has, however, stated in cross examination on behalf of the opposite parties 1 and 2 that Exs. R. 1/a and R. 1/b are the correct copies of the originals.

ON the basis of the record, we are constrained to observe that it is not the case of the complainant that opposite party No. 3 doctor either did not possess the requisite skill or was not a qualified Eye Surgeon to have undertaken the operation of squint correction. His affidavit coupled with the out-patient record got produced by the complainant during the course of his (doctor''s) cross-examination, clearly indicates that what was the state of vision in the left eye and the retina detachment was old and was so observed in fundus. Having added these words subsequently was denied by the doctor. At the risk of repetition, we may observe here that there is nothing on record to even remotely suggest that detachment of retina being the outcome of the operation in question is nowhere opined by any of the doctors whose prescription slips were brought on record.

MERELY because a patient does not respond favourably to a given treatment by the physician or surgery having failed, per se will not make the doctor liable on account of his being careless or negligent; especially in the absence of any evidence of expert being produced by a party like complainant in the present appeals before us, to show as to what should have been done by the doctor which he did not do or what was done by him should not have been done at all. As already observed, complainant has miserably failed to produce any evidence worth the name to support his case that the detachment of retina was directly attributable to the negligence of the opposite party No. 3-doctor who had performed the squint correction operation on the left eye of the complainant. In case evidence was there, onus would have shifted upon the opposite parties to disprove such evidence. Admittedly that is not the situation in the present case. In case of medical negligence, minor omission here and there will not per se be said to be the case of negligence which calls for allowing compensation.

In this behalf reliance is being placed on the decisions, Smt. Manju Garg v. Goel Hospital and Anr. , IV (2005) CPJ 62 (NC)=2005 JMC 63, K. Venkateshwarlu v. Managing Director, Nagarjuna Hospital, I (2006) CPJ 47 (NC)=2006 JMC 315; Krishna Murari Sinha v. Dr. Md. Basheer Alam, IV (2006) CPJ 332 (NC)=2007 JMC 135; State of Punjab v. Shiv Ram and Others, IV (2005) CPJ 14 (SC)=vi (2005) SLT 498=iii (2005) ACC 717 (SC)=2007 MLR 131 (SC); Bimal Kumar v. Barun Kumar, 2007 MLR 31 (NC); K. Sadanandan and Another v. Lisie Hospital and Others; I (2006) CPJ 24 (NC)=2007 MLR 62 (NC); and Nehru hospital v. Bhiwani Dutt and Ors. , I (2007) CPJ 294 (NC)=2007 MLR 72 (NC ).

NO other point was urged. In view of the aforesaid discussion, Appeal No. 151/2005 filed by the opposite parties is allowed and the order passed by the District Forum, Una, in Consumer Complaint No. 244/2001 is hereby quashed and set aside and as a fallout of it, Appeal No. 112/2005 stands dismissed. Thus, with the allowing of Appeal No. 151/2005, complaint filed by the complainant before the District Forum below stands dismissed. All interim orders passed in Appeal No. 151/2005 shall stand vacated forthwith. Office is directed to place an authenticated copy of this order on the file of Appeal No. 151/2005 and also supply free copy of this order to the parties in both the appeals. Ordered accordingly.