Dr. S. K. Govil vs Smt. Saroj Gupta

Appellant was the opposite party before the State Commission, where the respondent Smt. Saroj Gupta had filed a complaint alleging medical negligence against the appellants.

Very briefly, the facts of the case are that the complainant having a ''cataract'' problem in her left eye, approached respondents 2 and 3. She was admitted in the Ophthalmic Centre and she was operated upon on 9.12.1990 for removal of cataract and implantation of an artificial lens in the left eye. After the surgery it was described to be successful by the appellants. The complainant felt restless and started vomiting. Subsequent of this, another surgery was performed on the complainant on 13.12.1990, during which the implanted lens was removed and she was discharged on 23.12.1990. She got herself examined by one specialist Dr. Santosh Singh and also contacted Dr. C.M. Sharof of Delhi and they gave the report which is as follows :

"Ocular Examination revealed corrected vision 6/12 O.D. Inaccurate projection O.S. (1 quadrant) I.P.S. is very low O.S. and U.S.G. show extensive choroidal detachment".

It is in these circumstances that a complaint was filed before the State Commission alleging medical negligence on following grounds :

(a) Administration of anesthesia was not done properly, as a result of which patient started vomiting.

(b) That before the operation, pre-operative tests like blood sugar test, cholesterol test, fungus test, E.C.G. test etc. were not done.

(c) That the operation theatre was not well equipped with all microscopic instruments and other emergency services necessary for lens implantation surgery.

(d) That operation was done casually, on 9.12.1990, without taking due care and precaution, as a result of which, there was extensive Choroidal detachment.

(e) That the opposite parties made manipulations in consent letter and history sheets filed as Annexure-A5 and A6.

The matter was contested by the appellant/opposite party. The State Commission after hearing, the parties while not holding the appellant negligent on points A, B and C of the allegations of medical negligence referred to above found the appellants negligent on points D and E and thus awarded a compensation of Rs. 1,00,000 to the respondent complainant. Aggrieved by this order, this appeal has been filed before us.

We have heard the learned counsel for both the parties at some length and also perused the material on record. The learned counsel for the appellants argued that there was no negligence on their part. Whatever was expected of a knowledgeable doctor was done and no expert opinion has been led by the complainant to hold them medically negligent. It was stated that there has been no manipulation of the record. Fault, if any, lies with the complainant, who while producing the photocopy of page 81 of the paper book has not covered the alleged entry made at page 81 in the original record, which was produced before us. It was also argued that the amount awarded is on high side.

After hearing the parties and perusal of the record we find that as far as expert opinion is concerned, the appellants themselves had sought an opinion from Dr. Sharof and is noted in the medical history of the complainant on 12.12.1990 at 8.00 a.m., which is as follows :

"Case discussed with Dr. Ashok Shroff of Bombay on telephone.

Advised :

(1) Attempt to push back I.O.L. with Heal-on/Oculose.

(2) Air to be put in A.C.

(3) If I.O.L. not getting into proper position, i.e., not pushed away from cornea then removal and injection of air in A.C.

(4) Systemic level treatment to continue.

It is the case of the appellants that they have acted according to the advice of Dr. Shroff in respect of (3) above. Like State Commission, even before us, the appellant has failed to satisfy us as to why the alternative No. 1 and 2 suggested by Dr. Shroff was not done, and why the advice of expert (Dr. Sharof) was not followed and under what circumstances the appellants jumped to carry out what was step 3, i.e., which was to be done only when "I.O.L. not getting into proper position" as a result of step 1 and 2. Only then the removal of I.O.L. was suggested. We have gone through the record very carefully and are satisfied and like State Commission we find that the appellants have been negligent in not following ''Expert'' advice. It does not lie in the mouth of the appellants to say that no expert opinion was led by the complainant. Dr. Shroff admittedly is an Expert. His advice is enough to nail the case one way or the other.

There was no dispute that second surgery was carried out on 13.12.1990 as clearly admitted by the appellants but when we see the history/record of the patient maintained by the appellants, there is no reference whatsoever about removal of the lens, in absence of which an adverse inference is to be drawn against the appellants.

As far as manipulation of record is concerned, we have gone through the entry made at page 81 of Volume I and also the copy produced by the complainant which is on the reverse of page 51 of Volume II and find that the alleged subsequent entry made by the hospital on 9.12.1990 (left hand top corner) does not find any place in the same document produced on the reverse of page 51 of Volume II, i.e., the record made available to the complainant. We have also been shown the original document of the same date and after comparing these two with the original, we are satisfied that these entries on the left hand top side of 9.12.1990 have been made subsequently which clearly is a case of manipulation of record to protect the appellants from being held guilty of medical negligence.

9A. The appellant also went on to state that they cannot be held negligent as the respondents complainants did not follow up the case with them as she never turned up for treatment or examination, after discharge. We have very carefully gone through the discharge certificate issued on 23.12.1990 which is on record. It clearly mentions that the respondent was expected to appear for follow up on 25.12.1990 and the complainant did appear on 25.12.1990 before the appellant and entry to this effect has been made and in this appellants have themselves suggested that the patient be referred to Dr. Agnihotry at Nagpur for opinion. Since there was no further advice for follow up with the appellant, we find that there was no good ground for her to come back. She subsequently was seen by Dr. Santokh Singh, an eminent Ophthalmologist at Bhopal and also by Dr. Sharof later on. In these circumstances, we see no merit in this contention of the appellant as well.

The question of negligence is writ large.

It is quite clear that on account of excessive vomiting lens was dislocated. In these circumstances, the follow up action as per expert opinion of Dr. Sharoff referred to earlier was not followed and we do not know as to what was done on 13.12.1990 as no medical record is available. The fact remains that the complainant has suffered on account of the treatment given by the appellants.

We also see that on account of the damage caused to the eye of the complainant, our view, has not been adequately compensated. Rs. 1,00,000 granted as compensation at best would be on the lower side and cannot be increased, as the complainant respondent is not in appeal before us.

In the aforementioned circumstances, we find that there is no merit in this appeal and is dismissed.

Admittedly, as per our order dated 13.3.2000 and 31.3.2000 a demand draft of Rs. 1,00,000 was deposited with this Commission. Since this amount has been deposited with this Commission within a reasonable period prescribed, in our view, the complainant/respondent would be entitled to withdraw this amount of Rs. 1,00,000 alongwith accrued interest. The respondent would also be entitled to cost of Rs. 5,000 upheld by the State Commission. The Registrar of this Commission is directed to release this amount in favour of the complainant respondent. The appellants shall pay Rs. 5,000 being the cost of the proceedings before the State Commission within a period of four weeks of passing of this order.

This appeal stands disposed of in above terms.