Cases Referred:

Advocates:
Counsel for the Parties :
For the Complainant :Mr. K. Sitapathi, Advocate.
For the Opposite Parties :Mr. C. Kodandaram, Advocate.

ORDER

Mr. Justice A. Venkatarami Reddy, President—The complainant a retired Air Commodore, aged about 75 years having an industry at Neredmet, consulted on 21.5.1988 the Doctor at L.V. Prasad Eye Institute and paid a sum of Rs. 80/as evidenced by Ex. A-1, and on examination the Doctor diagnosed that the complainant was having cataracts in both the eyes more in the right eye than the left. Thereafter he consulted again on 14.10.1988 as evidenced by Ex. A-2 receipt and on 16.10.1988 as evidenced by Ex. A- 3 receipt for Rs. 3,350/- and was admitted on 16.10.1988 and Dr. Chandrasekhar performed cataract operation at 8.30 a.m. on 17.10.1988 and implanted a lens (Intraocular), and the complainant was advised to stay in the institute for one more day for post operative care. But the complainant on the very next day morning of operation developed head-ache and severe pain in the right eye and was again taken to operation theatre and was re-operated and a vitrectomy was performed by removal of intraocular lens which was implanted on the previous day. Thereafter the complainant developed infection in his right eye with a typical coliform bacteria for which the opposite party used massive dossages of high power drugs and the complainant was discharged on 21.10.1988 and lost eye sight of the right eye. For getting his left eye operated, the complainant went to Antwerp, Belgium and Dr. Stockmans examined the complainant on 1.9.1989 and found dense nuclear cataract in his left eye and the same was operated on 11.9.1989 and the complainant's vision on the left eye was restored with unusual clarity and no complications.

2. Alleging that the loss of vision of right eye is due to gross negligence and improper application of skills and lack of aseptic conditions and due to improper post-operative care which was indicated by the circumstance that he got good vision in the left eye after operation by Dr. Stocksman, that there is negligence on the part of the Doctor in performing the cataract operation and deficiency in service specially maintaining proper aseptic conditions to prevent infection, lack of emergency medical facilities, absence of resident doctor, anesthetist and trained nursing staff resulted in dis-figurement of me face of the complainant which was adversely effected his facial appearance and also loss in business, the complainant filed this complaint claiming in all a sum of Rs. 9 lakhs after issue of legal notice dated 7.11.1989, the opposite parties 1 and 2 i.e., (1) LV Prasad Eye Institute and (2) Dr. Chandrasekhar who operated right eye of the complainant for cataract.

3. The first opposite party in its version stated that the operation was carried out in most aseptic conditions using highly sofisticated instruments with utmost care and deligence, and the infection does arise in certain cases inspite of best treatment and efforts, the complainant is not a consumer and the service rendered by the opposite parties do not come within the purview of the Consumer Protection Act and that the omplainant got himself discharged on 21.10.1988 and was admitted in Challa Nursing Home and was attended by nephrologist as his general condition was not satisfactory. The complainant came to the opposite party hospital on 29.10.1988 and 4.12.1988 and was examined and was last seen on 6.2.1989. It was also stated that the second opposite party performed four other operations on 17.10.1988 in the same operation theatre and no infection was noticed in those cases. Inspite of the best care and aseptic conditions maintained in the hospital, the infection developed because of the age of the complainant and as he was diabetic and not due to any deficiency in service on the part of the opposite parties.

4. The second opposite party in his version admitted the performance of the operation and stated that second operation became necessary due to infection and the complainant was orally informed of the necessity of operation and his son signed in the required papers for second operation and that there is also an element of risk involved in any medical procedure and more so in a surgical operation and the complainant falls into a high risk factor group as he was an aged man suffering from diabetics and in such cases, the risk of post-operative infection is much higher. He denied that the complication has developed due to high power drugs. Since there is no negligence on his part in conducting the operation, he is not liable for payment of any compensation and in any event the complaint is not maintainable against the Doctors.

5. The complainant examined himself as PW 1 and got marked Exs. A-l to A-16 and on behalf of the opposite parties. Dr. Chandra sekhar who performed an operation was examined as RW 1 and another Mr. Tara Prasad Doss was examined as RW 2 and Exs. B-l and B-2 were marked.

6. On the basis of the aforesaid pleadings, the questions that arise for consideration are, (1) whether the complainant is a consumer and the complaint is maintainable under the Consumer Protection Act, and (2) whether the loss of vision of right eye is a result of any negligence on the part of the second opposite party in conducting the operation or any deficiency of service on the part of the Institute in not properly maintaining the aseptic conditions, if so, whether the complainant is entitled for any compensation, if so, how much ?

7. So far as the question relating to the maintainability of the complaint is concerned, now it is well settled by the decision of the Supreme Court of India in Indian Medical Association v. V.P. Santha, III (1995) CPJ 1 (SC) that the service rendered to patients by Medical Practitioners falls within the ambit of service as defined under Section 2(1)(o) of the Act except where it is rendered free of charge to all. In this case as evidenced by Exs. A-l, A-2 and A-3, the opposite parties collected charges from the complainant. Although it was stated that subsequently they refunded the amount, but as initially the complainant was charged towards medical services, the complaint is maintainable.

8. With regard to the second question, we have to firstly consider whether there is any negligence on the part of the second opposite party in performing the operation on the right eye of the complainant for removal of cataract.

9. Before adverting to the question, it is necessary to consider the cases cited by the learned Counsel for the complainant.

10. The learned Counsel for the complainant Sri R. Sitapathi invited our attention to page 483 of Davidson's Principles and Practice of Medicine 14th edition dealing with special problems in the management of diabets and mellitus. Where in in was stated that in case of diabetes and surgical emergencies "the essentials are to maintain the oxidation of glucose by the tissues at a sufficient rate and to combat acidosis and electrolyte disturbances when they occur. This can be done effectively only if the state of the diabetic control is assessed continuously and accurately. A laboratory service that can provide rapid results is thus essential".

11. Relying on the said passage, it is submitted that a Laboratory service that can provide rapid result in case of operations of diabetic patients is essential and as the opposite party No. 1 has no laboratory to provide the state of diabetic condition of the patient it will amount to deficiency of service.

12. With regard to the duty and extent of care required of a Doctor in relation to the patients, the learned Counsel for the complainant invited our attention to page 709 of Anand & Sister’s Law of Torts 4th edition, wherein it was stated that "A person who undertakes something requiring special knowledge or skill will be considered negligent if by reason of his not possessing that knowledge he bungles although he does his best". But in the instant case there is no evidence to show that the second opposite party who is a surgeon failed to exercise the skill that is required on him.

13. Reliance is also placed on the decision of the Supreme Court of India in Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Another, AIR 1969 Supreme Court 128, wherein their Lordships of the Supreme Court of India stated that "The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a resonable 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 : The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency".

14. Applying the texts laid down in the above decision of their Lordships of the Supreme Court of India, it is to be seen that the second opposite party is an eye surgeon and possessed adequate skill. After seeing the patient on two occasions earlier, the Doctor undertook the case of operation of cataract in the right eye. It cannot be said that there is any failure on the part of the opposite parties in taking care in conducting the operation. There cannot be any doubt that the second opposite party has a reasonable degree of skill and knowledge and exercised the same with reasonable degree of care.

15. The learned Counsel for the complainant also invited our attention to the decision of Supreme Court of India in State of Haryana and Another v. Ratan Singh, AIR 1977 Supreme Court 1512, wherein it was held that "in a domestic enquiry the strict and sophisticated rules of evidence under the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and creditibility".

16. Relying on the afore said decision, it is submitted that the Trade Accounts and the Balance Sheets for the years 1988, 1989, 1990 and 1991 i.e. Exs. A-13 to A-16 show that on account of loss of vision in right eye, the complainant could not attend to his business resulting in losses. But those documents do not show that the complainant is a partner and even otherwise, we are satisfied that the loss caused in the business cannot be a direct consequence of negligence, if any, in performing the cataract operation in the right eye of the complainant, resulting in loss of vision of right eye. Hence those documents cannot be relied upon for the purpose of arriving at the alleged loss said to have been suffered by the complainant and consequently the quantum of compensation.

17. The learned Counsel for the complainant further invited our attention to the decision of Kerala High Court in Dr. T.T. Thomas v. Smt. Elisa and Others, AIR 1987 Kerala 52, wherein it was held by a Division Bench of Kerala High Court, that "Failure to perform emergency operation and death of patient on account of such failure amount to negligence on part of Surgeon. When Surgeon advances a plea that the patient did not give his consent for the surgery or the course of treatment advised by him the burden is on him to prove that the non performance of the surgery or the non-administration of the treatment was on account of the refusal of the patient to give consent thereto. This is especially so in a case, where the patient is not alive to give evidence."

18. The principles laid down in the aforesaid decision has no application to the instant case. The case of the complainant is that the opposite parties have not taken his consent for performing second operation. On the other hand the opposite parties contended that the complainant gave orally consent and that the complainant's son signed the required forms of consent. This is not a case of emergency where the Doctor refused to perform operation for want of consent, but vice-versa.

19. In the complaint, there is no specific allegation that there is any negligence on the part of the second opposite party in performing the operation. On the other hand, it was stated that the complainant was informed that his surgery was successful. But according to the complainant he developed headache and severe pain in the right eye which is due to infection resulting in second operation of vitrectomy and removal of intraocular lens. The opposite party No. 2 admitted that there was infection in the right eye on the next day of operation. But it is not the case of the complainant mat there is any defect or negligence in performing the operation due to which the infection developed, but due to the failure of the Hospital Authorities to maintain the eseptic conditions.

20. In the counter of the first opposite party, it was stated that on the next day of the operation, the patient had developed infection and the opposite parties immediately started the treatment for infection and that the infection necessitated second operation.

21. The second opposite party in his counter stated that there is no negligence in conducting the operation either on 17.10.1988 or 18.10.1988. But there is always an element of risk involved in any medical procedure and more so in a surgical operation and the complainant falls into high risk factor group as he is an aged man suffering from diabetes and the risk of post-operative treatment in diabetic is much higher than the general population".

22. PW 1 in his evidence also did not say that there is any negligence on the part of the second opposite party in performing the operation. Ex. A-4 is a letter dated 15.11.1988 issued by the second opposite party to whom it may concern. In the said letter, it was stated that the surgery was uneventful but for the fact that the cortical clean up took a longer time than usual because of the inadequate mydriasis. On the first post operative day the patient complained of pain in the eye and headache. On examination he was found to be having 1 + lidedema with 1 + conjunctival congestion. There were trace folds of the cornea with 1 + epithelial edema and 1 + stromal edema. The anterior chamber showed coagulum on the iris with 1 + cells and flare. The pupil was round and central and 4 mm in diameter. Digitally the pressure was raised. He was started on Betnesol eye drops every 30 minutes, Gentycin eye drops every 4 hourly and Tablet diamox one thrice a day. By the evening he was feeling better and the pain had resolved. On examination the come a revealed a 360 degree infiltration around the limbus and a 1 mm hypopyon. He was diagnosed to be having endophthalmitis and on the same day a vitrectomy was performed with removal of intra ocular lens and intra vitreal garamycin, cephazoline and decadron were give. As his renal function showed a raised serum creatinine intravenous gentemycin dosage was adjusted accordingly and injection cephazoline was substituted with oral Norflaxacillin tablets. It was further stated that inspite of the treatment the corneal infiltration increased and no chamber details could be seen by the second post operative day. The vitreous culture showed a typical coli-form bacterial which were sensitive to garamycin, cephazoline and also norflaxacillin."

23. Thus the opposite party No. 2 according to the certificate took necessary care and administered the required medicine to avoid infection. But inspite of this treatment the patient did not get any vision but his pain and the inflamation were controlled.

24. Ex. A-6 is a certificate signed by Dr. Stocksman merely shows that he has examined Mr. Satyanarayana i.e. the complainant in first week of September, 1989 and the right eye of this patient was completely lost due to intra-ocular infection after cataract surgery. The other certificates i.e. Exs. A-7 and A-9 issued by Dokter L. Stockmans and Ex. A-10 issued by Bo Andersen do not show that there is any negligence on the part of the Surgeon who conducted the operation.

25. It is next submitted by the learned Counsel for the complainant that there is deficiency of service on tile part of the opposite parties as the opposite party lacks back-up, service, did not keep the eseptic condition in the hospital, lack of emergency facilities, did not have a resident doctor and trained nursing staff.

26. It is true that relying on the passage referred to above from Davidson's Principles and Practice of Medicine, it is submitted that knowing that the complainant is a diabetic the opposite parties did not take care to monitor upto date the diabetic condition of the patient. It is no doubt that during the relevant period, the opposite parties did not have pathalogical laboratory. But PW 1 in his cross-examination admitted that "I have mild diabetes. I informed the same to the doctor. I got myself examined blood and urine before operation. I do not remember in whose laboratory the blood and urine were analysed. The doctor performed operation only after looking into the urine and blood reports". It is therefore, clear that after looking into the blood and urine reports only, the operation was performed. It therefore cannot be said that there is any negligence on the part of me opposite parties in finding out the state of diabetic condition of the complainant, and it is clear that only after looking into the reports, they operated the eye of the complainant".

27. The allegation that the opposite party lacks back-up service and emergency medical facilities is merely an allegation and there is no evidence to substantiate the same. Even otherwise in the case of the complainant, the lack of back-up service and emergency medical facilities and also absence of resident doctor have no nexus with the infection of right eye after operation. It is the case of the opposite parties that their's is one of the best well equipped and well maintained hospital and there is some justification that they are having latest equipments relating to the eye diseases and for performing eye operations.

28. It is next submitted that the opposite party has no trained nursing staff. There is no basis for this allegation and there is no evidence in support of this allegation. We are inclined to accept the evidence of RWs 1 and 2 who stated that four other operations were performed on the same day, and there was no infection with regard to all the four opertions. As deposed by RWs 1 and 2, the complainant was aged about 75 years at the time of operation, and is a diabetic patient which might have contributed to infection as his resistence is below normal.

29. Moreover the operation was performed on 17 thand 18th October, 1988 and the Stocksman performed operation on the left eye on 12.9.1989 i.e. nearly after one year and a lawyer notice was issued only on 7.11.1989. We are therefore inclined to accept the version of the opposite party that funcation of the operation theatre was done once in a week and it was kept in eseptic condition. There is always a risk of infection in case of aged and diabetic patients and there is no evidence on record that the opposite party did not keep the premises in aseptic condition.

30. It is next submitted that the very fact, that the complainant lost vision of his right eye shows that there is negligence on the part of the opposite parties on the principle of Res Ipsa Loquitor. But it is to be seen that in case of medical treatment as well be much more so in case of surgery, inspite of taking best care, a patient may die. But that does not by it self establish that there is negligence on the part of the doctor. We are, therefore, not inclined to apply the principles of Res Ipsa Loquitor to the instant case.

For all the afore said reasons, we dismiss the complaint. But in the circumstances of the case without costs.

Complaint dismissed.