CHRISTIAN MEDICAL CENTRE vs A.SHAJAHAN

IN support of the application for condoning the delay of 46 days in presenting the appeal in the original affidavit of February, 1998 it is stated as follows: "The order of the District Forum is received by our Advocate on 20.12.1997, though dated 12.12.1997. The order has to be studied at various levels before filing appeal. The appeal could not be filed within the prescribed period of thirty days due to administrative delays and obtaining permission from the higher Authorities i.e., Chairman, Council of Christian Hospitals, Bangalore. There are no laches or negligence in filing the appeal."

THE learned Counsel for the petitioner/ appellant took time to file a better affidavit and thereafter in the affidavit of the Medical Director of the applicant the reason for the delay is stated as follows: "THE order of the District Forum was delivered to our Advocate on 20.12.1997 and the same has been delivered to us. Before filing the appeal we have called remarks from the concerned doctor who performed the surgery. THE Business Manager Sri Bejamen was looking after the matter. We sought for legal advise before filing appeal. Also there is a Committee in which the matter was discussed. We had to seek permission from higher Authorities i.e. Chairman, Council of Christian Hospitals, Bangalore. In this process there was delay and the appeal could not be filed within the time granted by the Act."

We find that in this latter affidavit, apart from repeating what was stated in the earlier affidavit, nothing more is stated. Admittedly the order of the District Forum was received on 20.12.1997 itself and the reason given is that it had to be studied at various levels by different persons and that in mat process time was taken. That leisurely deliberation cannot be a ground. We find that no sufficient cause is made out for condoning the delay in presenting the appeal. FA. IA. No. 194 of 1998 for condoning the delay is, therefore, dismissed, and FA. SR. No. 572 of 1998 is consequently rejected.

We have gone through the order under appeal. The short question that arises is whether before operating the complainant, who was aged 65 years, for cataract of the left eye on 22.3.1996 he was asked whether he was suffering from diabetes. It is not in dispute that at the time when the complainant was operated he was diabetic. The learned Counsel for the petitioner/appellant does not dispute the fact that before the petitioner was operated he was not asked whether he was a diabetic. But he states that all tests were conducted and they did not disclose that he was suffering from diabetes. However the learned Counsel for the petitioner/appellant himself states that if the complainant was on anti-diabetic medicines the tests conducted on him would not disclose that he was suffering from diabetes. The complainant was subject to a second surgery on 28.3.1996 and his left eye was removed. In the appeal before us, under the heading "Brief facts of the case" the tell tale facts as to what happened after 22.3.1996 are stated as follows : "The operation was successful and the vision to left eye was much more than the right eye. He was discharged on 24.3.1996. The respondent herein again visited O.P. Department on 25.3.1996 with complaint of pain and watering in left eye. On examination, it was found that the eye was infected. He was treated as out patient with powerful antibiotics. He came again on 26.3.1996. He was given suitable medicines. He again came on 27.3.1996 and informed for the first time that he was diabetic for the past four years and was on anti-diabetic medicines. He again visited on 28.3.1996. It was noted that his urine was showing sugar and the infection in the eye was not controllable. He was advised for removal of the left eye. On his consent, it was removed. On his request, he was allowed in the hospital and discharged on 3.4.1996. Subsequently, he visited the Hospital on 6.4.1996; 10.4.1996 and 22.5.1996. On 22.5.1996, he took away the O.P. Card. He gave notice and filed complaint before the reply could be given. After enquiry, the President of the District Forum rules that there was no negligence on the part of the hospital, while the two Members felt otherwise."

In the majority opinion of the District Forum, it is held : "In the same hospital treatment record the respondent recorded that the patient was diabetic and did not disclose on the first occasion that he was diabetic. In the replication, the respondent contends mat the petitioner was diabetic which also could be contributory for endogenous infection which could flare up expogenous. This contention of the respondent clearly establishes that they failed to discharge their functions properly. They themselves admitted in their version the "Diabetes" could be contributory for infection. The explanation of the respondents appears to be that the infection occurred due to the negligence of the patient and non- disclosure of diabetes at the time of the first operation is against to the established standards prescribed by the medical science. Guidelines prescribed for conducting eye camps by Government of India and recommendations of Indian Medical Council. In a Text Book of (Opthlmalogy) Parson''s Diseases of the Eye by Stephen J. Miller (16th Edition) at page 290 it is laid down as "when the cataract has become mature the only effective treatment is its operative removal. Before this is contemplated, however, a general overhaul of the patient should exclude the presence of serious systematic disease. A disease such as diabetes does not preclude operation but it should be adequately controlled by expert before and after surgery". In the case on hand the respondent failed to conduct preliminary tests of sugar in urine and blood of the petitioner and not initiated any steps to control the diabetes by expert before and after surgery. They simply blaming that the petitioner did not disclose on the first occasion that he was diabetic."

The majority opinion further expressed as follows: "The respondent''s Counsel filed into the Forum the said affidavit (to substantiate the respondents'' contention) on 14.11.1997 while summing up his arguments. The reception of affidavit without giving notice and an opportunity to cross examine the deponent is hit under Order XIX of the C.P.C. The respondents conducted operation to remove the cataract of the petitioner without conducting urine, blood, sugar test and failed to take adequate steps to control the effects of diabetics before and after the surgery which amounts to negligence and deficiency in service on the part of the respondent hospital. We are fortified in our view by the above decisions of the Apex Court in A.S. Mittal v. State of U.P., 1989 SCC (Cri.) 539, and Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, and hold that there is negligence and deficiency in service on the part of the respondent hospital."

THE facts of the present case establish that the appellant did not take proper precautions to ascertain whether me complainant was suffering from diabetes before conducting the cataract operation on his left eye. THEre can be no doubt that this constitutes negligence and amounts to deficiency in service. Admittedly the complainant was diabetic and the precautions that had to be taken in the case of diabetics while operating for cataract were not taken in the case of the complainant on 22.3.1996. Admittedly the complainant was not asked whether he was a diabetic before he was set for operation on 22.3.1996. No error of judgment was involved. It was a negligent oversight, but the direct consequence was that a second operation for removal of the eye became necessary. That, in all probability, could have he avoided if the necessary precautions to be taken in the case of diabetics were taken. Dr. Laxinan Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, is a case which arose out of a suit and the question that arose related to liability of a surgeon for alleged neglect towards his patient. His patient was a boy of 20 years who met with an accident resulting in the fracture of the femur of his left leg. The Trial Court found that the doctor performed reduction of the fracture and that in doing so he applied with the help of three of his attendants excessive force without giving any anaesthetic and that the said treatment resulted in cerebral embolism or shock which was the proximate cause for the boy''s death. The High Court also found that the doctor did not give anaesthetic to the boy, that he gave only a single morphia injection, and that he used excessive force in going through the treatment which resulted in shock causing the boy''s death, and that the doctor''s case that the boy died of cerebral embolism was merely a cloak used for suppressing the real cause of death, viz. shock. While holding that no grounds were made out for interfering with these findings of the High Court and the Trial Court, the Supreme Court observed as follows: "The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advise 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 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..... 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."

A.S. Mittal v. State of U.P., (1989) 3 SCC 223, was a public interest case relating to mass cataract operations conducted by Lions Club in two camps which resulted in several persons operated for cataract loosing their eyes. The reason was said to be the use of infected saline water to wash the eyes. The Supreme Court observed that "even according to Dr. Sahay (the doctor who performed the cataract operations) the modern techniques in opthalmic surgery render cataract a minor operation" and that a cataract affected eye when properly operated was expected to become normal. The Supreme Court held as follows in that case. "A mistake by a medical practitioner which no reasonably competent and careful practitioner would have committed is a negligent one. One of the questions that might arise in the appropriate Forum is whether the doctors, judged by the circumstances in which they were working, made a mistake and if so whether such a mistake was negligent." xxx xxx xxx .....Mistakes will occur on occasions despite the exercise of reasonable skill and care.... But, in a case where the plaintiff developed meningitis as a result of some infection in the apparatus used in the operation it was held that there must have been some negligence by the hospital staff for which the hospital Authority was responsible..... But where the operation is a race against time, the Court will make greater allowance for mistakes on the part of the surgeon or his assistants, taking into account the ''Risk- benefit''."

The Supreme Court referred to Dr. Laxmnn Balkrishna Joshi''s case (supra). The Supreme Court also observed that expert sub-committee of the Indian Medical Council recommended that in conducting operations in a camp there should be a pathologist to examine urine, blood, sugar, etc. More recently in Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 Supreme Court Cases 634, the Supreme Court referred to these decisions and also to Indian Medical Association v. V.P. Shantha, III (1995) CPJ 1 (SC)=(1995) 6 SCC 651, and to the English decisions in Bolam v. Friern Hospital Management Committee, 1997 1 WLR 582=(1957) 2 All.ER 118, and Sidaway v. Board of Governors of Bethlem Royal Hospital, 1985 AC 871=(1985) 2 WLR 480=(1985) 1 All.ER 643, and held as follows : "The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable. As held in Laxman case (supra), by this Court, a medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable decree of care. This is the least which a patient expects from a doctor."

That was a case where a doctor performed a sterilisation operation on a woman and left a mop inside her peritoneal cavity leading to peritonitis, and a second operation which led to the discovery of the forgotten mop (towel) inside, and her subsequent demise. Incidentally the Supreme Court also observed in that case as follows: "It is true that in a number of cases when foreign bodies are left inside the body of a human being either deliberately, as in the case of orthopaedic operations, or accidentally no harm may befall the patient, but it also happens that complications can arise when the doctor acts without due care and caution and leaves a foreign body inside the patient after performing an operation and it suppurates. The formation of pus leaves no doubt that me mop left in the abdomen caused it, and it was the pus formation that caused all the subsequent difficulties. There is no escape from the conclusion that the negligence in leaving the mop in Chandrikabai''s abdomen during the first operation led, ultimately, to her death."

In the present case it was negligence on the part of the doctor in not enquiring whether the complainant was a diabetic. The doctor cannot take shelter on the fact that the complainant himself did not reveal before the cataract operation was performed on him that he was a diabetic for the past four years. This is not a case where the patient was asked and yet he did not give information as regards his ailments. Doctors treating illiterate patients and patients coming from villages, especially when they belong to the neglected strata of the society, have to question the patients and elicit information about their health and general condition. In fact this is the normal practice adopted by doctors in respect of all patients. As held by the Supreme Court in V.P. Shantha''s case (supra), medical practitioners do not enjoy any immunity and they can be sued in contract or tort on the ground that they have failed to exercise reasonable skill and care and they are not immune from a claim for damages on the ground of negligence. The Supreme Court also referred to the following passage from Law and Medical Ethics by Mason and McCall Smith (4th Edn.). "Where, then, does the doctor stand today in relation to society. To some extent, he is a servant of the public, a public which is widely (though not always well) informed on medical matters. Society is conditioned to distrust paternalism and the modern medical practitioner has little wish to be paternalistic. The new talk is of ''producers and consumers'' and the concept that ''he who pays the piper calls the tune'' is established both within the profession and in its relationships with patients. The competent patient''s inalienable rights to understand his treatment and to accept or refuse it are now well-established, (pp. 16- 17). Consumerism is now firmly established in medical practice - and this has been encouraged on a wide scale by Government in the United Kingdom through the introduction of ''charters''. Complaint is central to this ethos - and the notion that blame must be attributed, and compensation, has a high priority."

In the result we find that the order of the District Forum finding that there was deficiency in service on the part of the appellant and in awarding Rs. 25,000/- as compensation to him and costs of Rs. 500/- is justified and cannot be faulted. We find that on the facts of the present case the sum of Rs. 25,000/- is perhaps on the low side considering the fact that the complainant''s left eye had to be removed totally. We, therefore, do not find any ground for interfering with the order of the District Forum under Section 17(b) of the Consumer Protection Act, 1986. Appeal & Revision dismissed.