AI Structured Summary
Not yet generated for this judgment
Judgment
Dr. Inder Jit Singh, Presiding Member
1, The present Revision Petition (RP) has been filed by the Petitioner against Respondents as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 21.09.2017 of the State Consumer Disputes Redressal Commission, West Bengal, Kolkata (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No1496 of 2014 in which order dated 18.11.2014 of District Consumer Disputes Redressal Forum, Kolkata, Unit-II (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 337 of 2013 was challenged, inter alia praying for setting aside the orders of State Commission and District Forum and staying the orders during the pendency of RP.
While the Revision Petitioner (hereinafter also referred to Petitioner) was Appellant and the Respondents (hereinafter also referred to as Respondents) were Respondents in the said FA/1496/2014 before the State Commission the Revision Petitioner was OP-2 and Respondent No.1 was Complainant before the District Forum in the CC No. 337 of 2013. For the sake of convenience, parties will be referred to as they were arrayed before the District Forum. Notice was issued to the Respondent on 06.03.2018. Petitioner filed Written Arguments/Synopsis on 18.04.2022 and Amicus Curiae on behalf of Respondent No.1 filed the Written Arguments on 27.03.2023. Delay in filing the RP was condoned.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:-
(i) On 11.07.2013 the husband of the Complainant Mr. Sailen Das (hereinafter referred to as the ‘patient’) visited the Purwanchal Nagarik Samity with the complaint that he was suffering from insufficient eye sight of his right eye. He was advised urgent operation and was advised pre-operative investigations. On 17.07.2013, the patient visited Purwanchal Nagarik Samity with pre-operative reports and was advised admission for operation at J.N.Ray Sishu Sewa Bhawan, which is Govt. Aided Hospital, where operations are done at very low cost. Biometry was done on 18.07.2013, for which the patient paid Rs.100/-. On 24.07.2013, surgery for mature cataract of right eye was performed at J.N. Ray Sishu Sewa Bhawan. The patient was discharged on the same day and was advised to come for check up on the next day. Requisite medicines were prescribed on discharge card. The next day, i.e. on 25.07.2013 the patient visited Purwanchal Nagrik Samilty and his dressing was changed and was advised to visit after one week. On 16.08.2013, the patient contacted the Petitioner on phone, when the petitioner was out of station and told that the patient was having pain, redness and poor vision in his right eye. The petitioner asked the patient to come for check-up.
(ii) The patient went to Susrut Eye Foundation & Research Centre (Respondent No.4 Hospital). On 19.08.2013, the patient visited the Petitioner. On examination there was diffused conjunctival congestion with hazy cornea and details of anterior chamber could not be seen Digital pressure was low. Oral antibiotic was prescribed. The complainant (wife of patient) told that they had got an Ultrasound done and report suggested that lens had not been properly placed, so the petitioner advised them to come with USG report. On 22.08.2013, the patient again visited the Petitioner but did not bring the USG Report. The patient was examined again, but no improvement was seen. Antibiotic was changed. The wife of patient visited the petitioner on 24.08.2013 with USG report and the patient was not well, so he did not come. The Petitioner, keeping in view the financial condition of the patient, referred the patient to R.I.O. Medical College better management.
(iii) On 26.08.2013, the wife of patient called the Petitioner and told that she is waiting for the Petitioner. The Petitioner told that she will be late in coming and asked her to wait. On hearing this, she made offensive comments over phone and the petitioner hanged up the phone. On reaching hospital, the petitioner was told that the wife of the patient had already left after creating a scene. The patient did not reveal that the patient started treatment on 19.08.2013 with the Respondent No.4 Hospital and was operated on 28.03.2013 remained under the treatment in the said hospital till 28.10.2013. On 28.10.2013, at Susrut Eye Foundation, USG R/E showed choroidal detachment. The patient was advised certain medicines but the status was almost same on 24.08.2013. He was advised R/E IOL explantation+anterior vitrectomy to relieve of his pain, which was done on 28.08.2013 in that hospital. On 29.08.2013, R/E showed hyphaema in lower part. IOP was very low. Patient was advised to continue the same medicine. On 08.10.2013 the patient again visited Susrut Eye Foundation and was advised to come for review on 19.10.2013.
(iv) On 06.11.2013, the wife the patient, Smt. Shefali Das filed a consumer complaint before the District Forum alleging medical negligence against the Petitioner (Dr.Kakali Saha (Ray) and Respondent No.2 (Purwanchal Nagrik Samity) demanding compensation of Rs.14,56,180/- with the allegation that the complainant had been orally told by Dr. B. Ghosh of Susrut Eye Foundation that the Petitioner had not put the lens correctly in the operated right eye of the patient as a result of which the patient lost his vision. The Petitioner contested the case before the District Forum by filing written version and denied all the allegations. Thereafter, the complainant filed amended complaint. In the amended complaint compensation demanded in the complaint was enhanced to Rs.19,30,629/- plus Rs.20,000/- towards litigation charges.
Vide Order dated 18.11.2014, in the CC no. 337 of 2013, the District Commission allowed the complaint on contest against OP-2 (Dr. Kakali Saha) with a cost of Rs.10,000/- and same was dismissed without any cost against the other OPs. District Forum directed OP-2 to pay a compensation of Rs.2,00,000/- to the complainant within one month from the date of order, failing which, OP-2 shall pay penal damages of Rs.300/- per day till full satisfaction of the decree and penal damages shall be paid to District Forum’s account if accrued. It was also ordered that if OP-2 violates the order of the Forum even after stipulated period, in that case penal action u/s 27 of C.P. Act 986 shall be started for which further fine and penalty shall be imposed.
Aggrieved by the said Order dated 18.11.2014 of District Forum, Petitioner appealed in State Commission and the State Commission. Vide order dated 21.09.2017 in FA No.1496 of 2014 dismissed the Appeal and upheld the order passed by the District Forum in CC 337 of 2013.
Petitioner has challenged the said Order dated 21.09.2017 of the State Commission inter alia on following grounds:-
(i) that the State Commission has wrongly passed the impugned order dated 21.09.2017 as the same is against the facts of the case and the law applicable.
(ii) the State Commission has erred in upholding the order dated 18.11.2014 wrongly passed by the District Forum based on assumptions and presumptions and against the pleadings and evidence on record adduced by both sides. Both the Fora below have passed their respective orders without application of judicious mind and without appreciating the case of the Petitioner.
(iii) the State Commission and District Forum have seriously erred in not appreciating the fact that the patient did not visit the petitioner for 24 days after his dressing was changed on 25.07.2013 when his visual activity-finger count was positive and went to another Eye Hospital and thus he, on his own, broke the doctor-patient relationship and thus he cannot blame the petitioner for the results, more so when medical advice of the petitioner was not followed up.
(iv) the Fora below erred in not ascertaining the true facts regarding the condition of the operated right eye of the patient during the period between 25.07.2013 (1st post operative day) and 16.08.2013 (first consultation at Susrut Eye Foundation) and the complication in the operated eye of the patient.
(v) The State Commission and District Forum seriously erred in attributing the infection/complication to the surgery performed by the petitioner. For first three weeks immediately after the surgery, the patient did not complaint of any pain in the eye and it was only after three weeks that he reported the Susrut Eye Foundation with complaints of pain in eye and loss of vision.
(vi) The State Commission and District Forum have wrongly presumed that the infection in the operated eye was due to hospital-born bacteria and that it was due to lack of sterilization of the operation area and surgical instruments and have wrongly held the petitioner doctor liable for the same. The Fora below have erred in crossing the brief while deciding the present case.
(vii) The District Forum has given contradictory findings in its order dated 18.11.2014. The basic allegation against the petitioner was that the lens was not properly placed by her during the surgery and this fact was revealed to the patient by the doctors of Susrut Eye Foundation, but nowhere the said Eye Foundation has indicated in any of the prescriptions, test reports including the USG Report or in the discharge summary that the lens has been implanted wrongly as alleged by the complainant.
(viii) The Fora below have erred in not appreciating the medical fact that Acute Bacterial Endophthalmitis is a devastating and known complication that occurs in 1:1000 cases. Despite early treatment about 50% eye become blind and source of infection in most of the cases cannot be identified with certainly and it is thought that the patient’s own external bacterial flora of the eyelids, conjunctive and lacrimal drainage passages is most frequent culprit….” Thus the complication in question is a known complication and the same cannot be termed as negligence.
(ix) The Fora below have erred in ignoring the fact that the Susrut Eye Foundation & Research Centre, in its Written Statement has categorically stated that the complainant visited OP-4 on 16.08.2013 with complaint of loss of vision after cataract surgery in right eye and on clinical examination of the patient it was found that the patient was suffering from hypotony, i.e. low intraocular pressure of the eye and IOL touching cornea and as such a confirmatory test of the affected eye was advised and after USG it was showed chorodial detachment.
(x) District Forum has wrongly inferred in its order that Biometry Scan was not performed by the Petitioner prior to going for the surgery and thus has wrongly held the petitioner liable for medical negligence. The report of Biometry scan has been concealed by the complainant and it was only on the basis of the scan/biometry that the lens was selected of a particular power.
(xi) The District Forum has seriously erred in holding that no pre-requisite tests/diagnosis were made by the petitioner prior to performing the surgery. It has been wrongly inferred that no proper diagnosis was made befgore surgery, hence the petitioner was negligent.
(xii) The State Commission has seriously erred in upholding the order dated 18.11.2014 of the District Forum, Kolkata, wherein the petitioner has been wrongly held liable for medical negligence.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
7.1 During the arguments, the Petitioner in addition to repeating what has been stated under the grounds, under para (6) above, contended that the patient had been getting treatment from Dr. B. Ghosh of Susrut Eye Foundation since 16.08.2013, which makes it clear that the patient did not follow the advice/medicines prescribed at the time of discharge and on 25.07.2013 or on 19.08.2013 and 22.08.2013.
7.2 The advice of the petitioner was not followed by the patient at any stage after this surgery of right eye, as he did not come for follow-up after a week from 25.07.2013 and visited only on 19.08.2013 (after about three weeks and while getting treatment in Susrut Eye Foundation w.e.f. 16.08.2013). The Petitioner contended that the complaint was not maintainable for non-joinder of the proper/necessary party, as the petitioner was insured with M/s United India Insurance Co. through a Professional Indemnity Insurance Policy but the District Forum did not make the Insurer of the Petitioner a party. The District Forum wrongly held the petitioner liable for medical negligence. The State Commission dismissed appeal without application of judicious mind and in a mechanical manner, upholding the order dated 18.11.2014, based on assumptions and presumptions and against the pleadings and evidence on record adduced by both sides during the trial of the complaint case. The Fora below have passed their respective orders without application of judicious mind and without appreciating the true facts in chronological order. The conduct of the complainant in not visiting the petitioner for 24 days, against the advised one week, and starting the treatment from another doctor, amounts to breach of doctor-patient relationship, that too without any information of knowledge to the operating surgeon. This is a case of not following medical advice and the patient cannot blame the operating surgeon under such circumstances.
7.3. On the other hand Respondent No.1 contended that On 24.07.2013 the Petitioner operated that Right Eye of the complainant in J.N. Roy Sisu Sewa Bhawan/OP-3 Hospital and same day in the evening he was discharged with certain advice and on fixing 25.07.2013 for next check up. On 25.07.2014 on removal of bandage, ascertained by the complainant that the vision of his Right Eye has totally gone and he could not see even things nearest to him and reported the same to the Petitioner/OP-2. The Petitioner consoled the complainant saying that he need not worry as the vision of operated eye will normalize gradually and prescribed some medication and fixed 09.08.2013 for further check up. On 09.08.2013, the complainant while examination of eye by the Petitioner, once again reported that he could not see anything with Right Eye. Thereafter, the Petitioner/OP-2 prescribed some medicines and asked to meet her further check up on 14.08.2013. On 14.08.2013, OP-2 referred the complainant to ROI Medical College for second opinion. On 16.08.2013, the complainant went to Susrut Eye Hospital. He was examined and advised USG of the eye and prescribed various medicines with advise for review on 24.08.2012. On 24.08.2013, Susrut Eye Hospital advised for admission on 25.08.2013 for ANT VIT + IOL Explanation under GVP (RE) under LA. The complainant admitted and was operated on 28.03.2013 in Susrut Eye Hospital. On 31.08.2013 complainant was re-examined by doctors of Susrut Eye Hospital. It is contended that from the case history supplied by the hospital, it will be crystal clear that the right eye of the complainant has been totally destroyed by the wrong surgery by the Petitioner herein and due to wrong implantation of IOL and sclera injection and the cornea became hazy due to choroidal detachment. In view of the said medical negligence by the petitioner herein, the complainant filed the complaint before the District Forum and the District Forum upon considering the rival submissions of all the parties and upon examining the medical records etc. of the case was pleased to pass its judgment on 18.11.2014 holding the petitioner herein negligent in treating the complainant. The Appeal filed by the Petitioner herein before the State Commission against the order passed by the District Forum, has also been dismissed.
We have carefully gone through the entire facts and circumstances of the case, orders of the State Commission as well as District Forum, rival contentions of the parties and other case records. In this case both the Fora below have given concurrent findings of medical negligence on the part of the Petitioner. As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.”
We do not find any infirmity or material irregularity or jurisdictional error in the order of the State Commission. Both the State Commission and the District Forum have given well-reasoned orders. Accordingly, the order of the State Commission upheld and the Revision Petition is dismissed.
The pending IAs in the case, if any, also stand disposed off.