CASE NO. 11/2010 (Date of filing of the Case: 04.03.2010)
Smt. Mithilesh Saxena V. Dr. Dipak Chatterjee
Order No. 32 Dt. 21.09.2012
Incomplete right eye surgery by Phaco Emulsification and the incidental consequence thereof on the complainant Smt. Mithilesh Saxena by Dr. Dipak Chatterjee, Eye Surgeon (hereafter called the doctor) on 07.12.2009 at his clinic ‘Dristi’ are the central points of this case.
Essentials of the complainant’s case is that on 07.12.2009, being accompanied by her husband,when she reported her attendance to the doctor at about 17-30 hrs. prior to the operation the doctor directed one lady attendant of her clinic to check her blood pressure (B.P.) which was 150/90 then, but the lady attendant noted down her B.P. as normal on a blank paper which remained in their custody. After sometime, one male attendant of the clinic saw her eyes and cut the eyelid of her right eye. As she was under fear and suffering from headache due to high B.P. the doctor prescribed her Combiflam tablet but she asked the doctor not to prescribe such tablet as Combiflam tablet being of Ibuprofen Group reacts in her body. The doctor changed the tablet and prescribed Disprin. After taking the medicine, her headache decreased but due to tension and fear,her heartbeat and B.P. increased.
She narrated her discomfort and uneasiness to the doctor but he confidently told her not to worry and assured that he would take care of everything. She never felt comfortable. The doctor administered her two injections, took deposit of Rs.500/- out of Rs.12,000/- as advance and took her to the O.T., told her again not to worry and assured that he would see. But he did nothing to control the B.P. and started the operation. In spite of her repeated appeal about her discomfort and uneasiness for high B.P. and high heartbeat, the doctor did nothing save and except giving hopes to cure her upto her satisfaction. She was conscious all along during operation. The doctor told the attendants “AAGE THEEKE HEATER LAGAILO NA, KATO SHEET ACHEY”.ATTO SHEETER MADHYAE KAAJ KORA JAYE?” HAATH KANPCHAYE.” After five minutes he said “ISH-SH AITA KI HOLO” and she felt sudden severe pain.
Her further case is that she spent about one and half hours in the O.T she observed that blood was oozing from her eye and the doctor was washing her right eye frequently by pouring water. Then he tried to set up a lens in her right eye repeatedly but he could not understand whether any lens was implanted or not. Doubtfully she asked the doctor how the operation was? The doctor replied that a defect occurred and she became scared. But he did not disclose anything to her husband and did not allow her to meet him. He informed her husband that she would be under observation whole night and would be discharged in the morning. On the morning of 08.12.2009 the doctor called up her husband and confessed that he committed a mistake in the operation and referred her immediately to Alokon Eye Care Kolkata, another private hospital. On 09.12.2009 at 7-00 hrs. they arrived at Alokon Eye Care Pvt. Ltd Kolkata and paid Rs.300/- for consultation. Doctors, after checking of her eye, consulted each other and said “CHOKH TA SHESH KORE DILO AMI KI KORTE PARBO.” Then they called her husband to show him the condition of her eye. Seeing her sight, her husband fainted. Complainant with courage looked at her damaged eye in the mirror and found that the eyeball went completely inside the socket and nothing was visible from outside. Doctors of Alokon Eye Care Pvt. Ltd. allowed her to go for a second opinion from some doctors / hospitals. As the situation seemed to be out of their control, the complainant enquired about better hospital from the local residents and finally reached Priyamvada Birla Aravind Eye Hospital, Kolkata (hereafter called PBA Eye Hospital, Kolkata). A team of doctors of the said hospital, specialist of different eye parts checked her eye thoroughly, one after another, by different instruments and advised necessary tests and checkups. Her damaged eye was operated on 10.12.09 morning for over three hours. The same team of doctors operated the eye again on 12.12.2009. They were satisfied with their jobs and results. She contacted the doctor over phone who operated her eye first and damaged it due to his mistake for financial help as the expenses of Birla Hospital were going out of their reach but he refused and said that he had performed his duties by referring her to Alokon Eye Care and added that he would not help as he was not guilty.
Complainant’s further submission is that her sources of income have come to an end because of her eye problem resulted due to the negligence of the doctor. She used to earn as tutor for drawing, painting, sewing and knitting etc. The effect of such negligence will continue throughout her life. Her husband and family got mentally and physically harassed. She lost her health, look and money for operation, wandered from hospital to hospital and now a regular to PBA Eye Hospital, Kolkata.
Dr. Chatterjee gave the assurance before surgery that Phaco has no risk, no pain, no suffering and a matter of Rs.12,000/- only and that she could go back home happily after an hour with improved eye sight and could continue her activities from the following day. But she is still suffering from eye problem, continuous headache and shivering in the body. The major operation of lens implant with micro-surgery is yet to be performed. This can be done only when the eye completely recovers from the next operation. She has been visiting the doctor of Birla Hospital for regular check up and paying a huge sum of money on traveling and staying, apart from the hospital expenses.
The complainant submitted an application on 08.01.2010 to the Asst. Director, Consumer Affairs and F.B.P. Malda against the doctor for compensation but the doctor refused to give any compensation through his advocate adding that the patient was treated without any negligence and mishandling.
Hence, this case for a compensation of Rs.15,00,000/-for mental agony, harassment, payments made at three hospitals named hereinbefore and B.K.G. Malda Eye Hospital, medicine charges, transportation, board and lodging at Kolkata.
Opposite party has contested the case by filing a written version. Challenging the maintainability of the case on a number of technical grounds and denying the averments of the complaint in toto, the opposite party admitted that complainant came to his clinic where he operates by Phaco technology. He submitted that no operation in this world is free from trouble, difference is only in degree. Phaco technology is less complicated than the other one. This technology is widely accepted and with the advent of medical science it has earned world wide reputation. So a patient comes to the doctor having quite conception about Phaco technology. In this case, the complainant is none but wife of B.S.F personnel who is well posted in the department. The cataract surgery involves two parts. The first part is called operation in anterior segment and rear portion is called posterior segment. Anterior segment is operated upon by one set of ophthalmologist and posterior segment is operated by another set of surgeon who is called posterior victro-retinal surgeon. Surgeon dealing with anterior part is called cataract surgeon and the surgeon dealing with posterior part is called victro-retinal surgeon. Very often the posterior capsule gets ruptured and as soon as it is ruptured the patient is referred to victro-retinal surgeon.
In the instant case when the capsule got ruptured, the patient was referred to Alokon Eye Hospital Kolkata after stopping the progress of surgery. But as it is learnt she did not get herself admitted in that hospital and after a lapse of three four days she got herself admitted in PBA Eye Hospital, Kolkata. The doctor of said hospital is the best person to say whether the present O.P. is negligent in doing the operation or not.
The papers of said hospital have been submitted in this case. No where there is any description that the present O.P. is guilty of rendering deficient service or negligent in dealing with the patient. Rupture of posterior capsule does not suggest that surgeon is negligent or guilty of deficiency in service. This rupture is very common and may take place to anyone. One who is fortunate, this hazard does not occur but one, who is unfortunate, this hazard occurs. Sincerity of the O.P. becomes evident from the referral of the patient to the victor retinal surgeon after stopping the progress of operation. If he did not stop the progress of operation, he could have been ascribed negligent. Because of his sincerity, the complainant regained the vision. Dismissal of the case has been prayed for.
Complainant Smt. Mithilesh Saxena and her husband Sri Ravi Prakash both submitted their evidence-in-chief by affidavits which on being tendered were accepted as PW-1 and 2 respectively. Both of them faced cross-examination in full.
Documents proved by the complainant have been marked Exts. 1 to 28.
Complainant produced a C.D. with the prayer for admitting it in evidence but it was marked X for the present as the ld advocate for the opposite party submitted that he was not supplied a set thereof.
Opposite party Dr. Dipak Chatterjee neither submitted any evidence-in-chief on affidavit nor appeared in the witness box to state his case on oath and face cross-examination.
Both sides advanced their arguments orally.
Following issues are framed on the pleadings of the parties:
1) Is the case maintainable?
2) Has there been any deficiency in service on the part of the O.Ps.as alleged ?
3) Is the complainant entitled to get the relief/reliefs as prayed for?
DECISION WITH REASONS Issue No. 1
Record does not reflect anything adverse to the maintainability of the case.
Issue is answered in the affirmative.
Issue No. 2
Ext.-1 OPD Slip BSF Hospital dt. 23.11.09 bears the B.P. reading of the complainant as 156/88. Entry dt. 24.11.2009 also bears the B.P. reading as 156/88. On 23.11.09 the complainant was referred to eye surgeon at District Hospital, Malda for needful management – cataract surgery (R).On 24.11.2009 she was prescribed Alfox which is a medicine for reducing depression, anxiety and tension. She was also advised yoga and exercise low salt, low fat diet.
Ext.-2, prescription dt.23.11.09 of Smt. Mithilesh Saxena by Dr. Dipak Chatterjee (O.P.) bears N. Catarait Right Eye CF ½ Mtre., two entries, one dt. 23.11.09, the other is dt.08.12.09. There is no entry of B.P. reading or advice for test for blood sugar.
Ext.-3,Discharge Certificate dt.08.12.09 of Dristi bears reference of Indoor No.2563 date of admission 07.12. 09, date of discharge, 08.12.09, of Smt. Mithilesh Saxena, Age 45, wife of Sri Ravi Prakash Saxena. Blood Pressure entry bears overwriting. Initial entry 160 or 170 is found to have been made 120 by interpolation against the column investigation. Surgery Performed column of the certificate bears initial reading as “Phaco Foldable Lens”. Out of this, “Phaco Foldab” has been struck out leaving the rest part “le Lens”. In the space between Investigations and Surgery Performed, it is written “CCC PC Rent Vitreous, Particle N dropped in Vitreous. No IOL implanted…” In the column-Advice on Discharge this exhibit bears:” To attend Alokon Eye Care, Lake Town, near Jaya Cinema. To Dr.D.N.Chattapadhyaya, M.S., 9830028916, Urgent.”
Surprisingly, this Discharge Certificate (Ext.-3) by the same doctor who has been so much vocal about the world wide acceptance of Phaco surgery in his written version and claimed therein his sincerity in performing the operation and further gone to the extent of claiming that due to his sincerity the complainant regained her vision, is found to have remained silent in disclosing the reasons for his failure in implanting the IOL in the eye of the complainant. Non-disclosure of the reasons either in the discharge certificate or in the written version that necessitated referral of the complainant to Alokon Eye Care Pvt. Ltd. is a brazen attempt to conceal the carelessness of the doctor. While referring the complainant to a doctor of his choice, the doctor should have given historical account of his treatment and the reasons that warranted referral, so that the next doctor, if any, and the patient also, might get the preliminary idea of the previous diagnosis, nature of treatment and the result thereof.
Ext.-4, the Prescription of Prof.(Dr.)Debnath Chattopaddhyay, Hony. Medical Director Alokon to whom the complainant was referred has noted cataract surgery R on 07.12.09, elsewhere. P.C. Rent, Nuclear Fragment drop, no IOL. O/E (R) Striat +++ wound gapping….P R defective, faint glow, no details, (L) immature. It means immature cataract in left eye. Said doctor advised for some surgical correction. But instead of admitting the patient for correction, advised, “May try second opinion.” with underline. His ultimate advice, ‘continuation of medicine’ is an unfortunate act on the part of the said doctor as compliance of this will mean consumption of Combiflam also which being a medicine of Ibuprofen group will harm the body of the complainant as the patient susceptible to allergy to Ibuprofen. Case Summary dt. 20.01.2010 of PBA Eye Hospital, Kolkata bears this reference. To make the things worse for the complainant and her husband, they were left in the lurch by such second referral. Under such circumstances, their arrival at PBA Eye Hospital, Kolkata and the treatment received by the complainant in that hospital as an inpatient initially and later as outdoor patient from 09.12.2009 to 27.08.2010 as reflected from the medical papers, prescriptions of different dates, Case Summary dt. 08.09.2010 and Case Summary dt.20.01.10 has been a blessing in disguise.
Evidence of PW-1 is that on 07.12.09 the lady attendant checked her B.P. which was 150/90 but she noted the B.P. as normal on a blank paper which remained in their custody.
Further evidence of P.W.1 is that as she was in fear, tensed and sweated with headache due to high B.P. Dr. Chatterjee prescribed her Combiflam for which she requested him to change it as it was of Ibuprofen Group. Prescription dt. 23.11.09 (Ext.-2) of Dr. D. Chatterjee bears corroboration of this fact. ‘Tab – Combiflam’ is found to have been penned through and ‘Tab –Disprin’ is found to have been prescribed in place thereof. Strangely, discharge certificate dt. 08.12.09 (Ext.-3) of the same doctor bears that Mithilesh Saxena was prescribed Combiflam. We have mentioned earlier that the Case Summary(Ext.-23) of PBA Eye Hospital, Kolkata bears ……Patient has a suspected allergy to Ibuprofen. Forum takes notice of the composition of Combiflam tablet. It bears the composition 400 mg. Ibuprofen and 325 mg. paracetamol. It is a product of Sanofi Aventis. Prescription of Combiflam for the second time to the complainant is, therefore, not only an act of ignoring the caution of the patient but an act of gross negligence on the part of the doctor.
A doctor is never presumed to be infallible. He is also not obliged to achieve success in every clinical case that he treats. Doctor cannot be held negligent simply because something goes wrong. Doctor can be found guilty only if he falls short of standard of reasonable skilful medical practice Ref. 2001 ACJ 1212 (Madras).
At the same time we are not supposed to be unmindful of the following observations of the Hon’ble National Commission:-
It is well established that it is for the eye surgeon to ensure before undertaking a cataract surgery on a patient that at least two important parameters of the patient; namely, the blood sugar and blood pressure are under control. In case these are not within permissible limits the eye surgeon postpones the surgery till such time that these have been controlled through medication and related treatment. Unreported decision dt. July 11,2012 of the Hon’ble N.C.D.R.C.in Dr. V.V. Sathaye….Petrnr. Vs. Himatlal Girdharilal Singala and Anr……Respondents. In the instant case, there is no evidence to suggest that the doctor took any preoperative measure to ascertain that the sugar and the B.P. of the complainant were under control before performing the operation in the right eye of the complainant. Not only that, for reasons best known to him, he neither stated his own case on oath nor appeared in the witness box to depose as a witness and face cross-examination. He also evaded production of the documents, if any, in support of the pre-operative steps taken by him before conducting the operation. Such lapse of the doctor warrants drawing of adverse presumption against his case in view of the principles laid down in the decision reported in AIR 1999 of the Hon’ble Supreme Court, 1441.
Evidence of the complainant and that of her husband bear a natural and spontaneous description of the horrible experience of the night of 07/08.12.2009.
Complainant and her husband have faced extensive cross-examination confidently. They could not be shaken at all; rather their cross-examination fortified their credibility on material points. We find no reason to disbelieve their testimony on the point of utter neglect of the doctor who on one hand gave false hopes and assurance to the compliant and her husband of taking due steps while performing the operation safely, on the other hand cared least in taking necessary pre-operative steps for necessary medication of anxiety, discomfort, uneasiness, sweating, headache, high B.P. as complained of by the patient and started the operation hurriedly under hostile conditions for which the complainant was shoved into the crisis of loosing her vision.
Series of medical papers of PBA Eye Hospital, Kolkata, Bellevue ClinicPharmacy(Exts.6,7,9,9a,10,11,11(a),11(b),12,13,14,15,16,17(2sheets),19(2 sheets),20 (3 sheets),21,22,22(a),23,24,25,26, and Railway Tickets (Ext.-27)(9 tickets) copy of information given to the Officer- In- Charge, Kolkata Terminal GRPS dt.17.09.2010 (Ext.-28), Medicine Vouchers (Ext.8, 18,) reveal that the complainant has been under regular treatment at PBA Eye Hospital, Kolkata and her vision has improved. Evidence of PW-3, Dr. Abhijit Chattopadhyay, an Eye Specialist, MBBS, MS(ophthalmology), Fellowship in Retina from Aravind Eye Hospital, Tamilnadu (Coimbatore) who treated the complainant on 20.01.2010 at PBA Eye Hospital, Kolkata and prior to that examined her on 09.12.2009 at PBA Eye Hospital, Kolkata when she complained of non-improvement of vision and pain in right eye after cataract surgery done outside on 07.12.2009. Medical papers including the prescription and the discharge certificate (Ext.-3) of Dr. Dipak Chatterjee of Dristi were shown to him by the patient Smt. Saxena and he went through them. About Ext.-3 he stated that this does not show whether any blood pressure or blood sugar test have been performed prior to the operation. He added that discharge certificate usually does not bear such reference. He also admitted that Ext.-3 does not show whether any medicine was prescribed for sugar and blood pressure. He identified two case summary dt.20.01.2010 and 08.09.2010 and one xerox of discharge summary report dt. 12.12.2009 with date of admission on 09.12.2009 issued by PBA Eye Hospital, Kolkata already marked (Exts. 23,25 and 14). He further stated that case summary dt. 20.01.2010 (Ext.-23) bears that on 12.12.2009 a lens particle was seen in A.C. which was removed along with A.C.(anterior chamber), wash + anterior vitrectomy on the same day. Prior to that on 10.12.09 globe reformation with TPPV (Tanspars Plana Vitrectomy) with nucleus removal and wound resuturing was planed and done under poor diagnosis under general anaesthesia. He opined that percentage in cataract operation is very less. During cross-examination he admitted that complication in cataract operation is very rare. He admitted that Ext.-25 shows that Mithilesh Saxena came on 27.08.2010 and on examination her best corrected visual acuity (BCVA) was 6/6 in both eyes which is normal 100% vision. Clarifying the reference of lens particle which was seen in A.C., as mentioned in Ext.-3, he stated that he means natural and not IOL i.e. artificial lens.
On consideration of totality of evidence oral and documentary in the light of the pleadings of the parties we conclude that the allegation of medical negligence and deficiency in service stands clearly established against the doctor.
Issue is answered in the affirmative.
Issue No. 3
Affirmative findings against the preceding issues lead us to conclude that the complainant is entitled to be indemnified by the opposite party Dr. Dipak Chatterjee for his failure in performing the cataract surgery in the right eye of the complainant with reasonable care.
His subsequent conduct as revealed from the evidence of PW-1and2 and the disapproval of the complainant’s proposal of payment of compensation mutually when she and her husband (P Ws1and 2) called him through the mobile of her husband (MAT Ext.1(2) and his declaration through his advocate before the Assistant Director Consumer Affairs and F.B.P., Malda indicate that he was not interested in settlement out of Forum/Court.
The complainant has prayed for an award of Rs.15,00,000/-for the disservice and damage caused to her eye by the doctor who impressed her and her husband on the assurance of giving sincere service. Her prayer includes compensation on account of mental agony and harassment, payments made at Dristi, Alokon, PBA Eye Hospital, BKG Hospital, medicine charges, transportation, food and lodging at Kolkata and for other expenses including litigation.
While appreciating the anxiety of the complainant, the effect and the gravity of the harassment and loss suffered by her since her operation by the doctor, we cannot be oblivious of the fact that the injury resulted in the eye of the complainant as complained of was not intentional rather incidental to the carelessness of the doctor while performing the surgery in the right eye of the complainant.
Amount of compensation claimed by the complainant appears to be disproportionate and exceptionally high. In our estimation she deserves the following awards:-
1) Rs.1,00,000/- on account of damage / injury to the right eye.
2) Rs. 30,000/- for cost of treatment at Dristi, Alokon, PBA Eye Hospital and BKG Hospital.
3) Rs.10,000/- on account of train fare from Malda to Sealdah.
4) Rs.20,000/- for food and lodging in Kolkata.
5) Rs.20,000/- for traveling from Kashmir, Madhya Pradesh and Chattisgarh to Malda and Food and Logding to attend the Forum on different dates.
6) Rs. 50,000/- for mental agony and harassment.
7) Rs.20,000/- for cost of litigation.
8) Rs.50,000/- for loss of income.
No relief has been prayed against Pro O.P. Nos. 1 and 2
Issue is answered in the affirmative
Before parting with record, we deem it necessary to record our shock and concern for the misleading report dt.14.08.2010 of Dr. Subrata Shom, M.O.(Eye Surgeon)District Hospital, Malda forwarded through the C.M.O.H., Malda who reported…. “According to my point of view this is not a case of negligence but a rare complication of Cataract surgery.” Said report was turned down by this Forum.
Order sheets are testimonials of the reasons for the delay in the progress of this case due to non-submission of the Expert Committee Report and the reasons for disapproval of the report of Dr. Shom. It is painful for us to repeat that other Members of the Expert Committee took the matter of enquiry casually and they performed their duties lackadaisically. Endorsements “Countersigned”, “Forwarded” with initials of different dates indicate that the report was submitted with a view to protect Dr. Dipak Chatterjee who is also attached to the same hospital. The doctors ought to have been sincere to the solemn task they were requested to perform.
Ext.-25 (Case Summary) dt. 08.09.2010 of PBA Eye Hospital, Kolkata shows that Mrs. Mithilesh Saxena came on 27.08.2010. On examination her BCVA was 6/6 in both eyes. PW-3, Dr. Abhijit Chatterjee stated that 6/6 is natural and 100% vision but while accepting this development in the right eye of the complainant we cannot wipe off the after-effect of the lapse of Dr. Dipak Chatterjee that forced him to postpone the operation, keep her under observation and refer her urgently to Alokon Eye Care Pvt. Ltd. followed by her ordeal that forced her to remain under treatment for months.
Complaint succeeds in part.
Proper fee paid.
Hence, ordered that D.F. Case No. 11/2010 is allowed on contest in part against the opposite party with cost.
Complainant do get an award of Rs.1,00,000/- on account of damage / injury to the right eye, Rs. 30,000/- for cost of treatment, Rs.10,000/- on account of train fare, Rs.20,000/- for food and lodging, Rs.20,000/- on account of traveling to attend the Forum, Rs. 50,000/- for mental agony and harassment, Rs.20,000 for cost of litigation, Rs.50,000/- for loss of income totalling Rs.3,00,000 (Rupees Three Lac Only).
The opposite party shall pay 90% of the total award i.e. Rs. 2,70,000/-(Rupees Two Lac Seventy Thousand Only) to the complainant and pay 10% of the total award i.e. Rs. 30,000/- (Rupees Thirty Thousand Only )in the State Consumer Welfare Fund.
The payments as directed above shall be made within 30 days from the date hereof failing which the awards will carry interest @9% p.a. till realization.