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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21 of Consumer Protection Act 1986, against the order dated 05.06.2018 of the State Consumer Disputes Redressal Commission Maharashtra (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.A/2015/438 in which order dated 19.01.2015 of Additional District Consumer Disputes Redressal Forum Mumbai Suburban District (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 21 of 2010 was challenged, inter alia praying for setting aside the order dated 19.01.2015 of the District Forum.
The Revision Petitioner (hereinafter also referred to as Complainant) was Appellant before the State Commission and Complainant before the District Forum. The Respondent (hereinafter also referred to as OP) was Respondent before the State Commission and OP before the District Forum. Notice was issued to the Respondent. Parties filed Written Arguments/Synopsis on 02.12.2022
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that complainant is retired doctor and was not able to see properly. On 27.11.2008, she consulted the OP / doctor at his Surya Hospital in Mulund and after diagnosing the cataract in the right eye, the OP advised cataract surgery. The pathological test were carried out on 29.11.2008. The optometrist technician from Surya Hospital carried out the measurement of right eye lens power by performing A Scan of the complainant’s right eye. He reported the power of the lens as + 24 Diopter. The cataract surgery by Small Incison Cataract Surgery ( SICS) technique of the complainant’s eye was performed by the OP in Surya Hospital by using IOL ( Intra Ocular Lens) of + 24 diopter power on 09th December 2008 and on the same day she was discharged. In the postoperative period, the complainant was found to have refractive error which was measured as for the distant vision Sph-5 and for near vision Sph-2.5. The OP advised the complainant using progressive lens spectacle for the correction of refractive error.
After finding that her vision was still not improved, the complainant consulted other ophthalmic surgeon in Mumbai for second opinion that included Dr. Nishikant Borse, Dr. Kumar, Dr. Deepak Bhatt, Dr. Bijal Mehta and Dr. Kulin for A Scan,. As per fresh calculation of the lens power as + 19 Diopter, Dr. Nishikant Borse carried out second surgery of replacement of previous lens with the lens of + 19 diopter at Wockhardit Hospital, Mumbai on 17th February 2009. Later on Dr. Bose also carried out corrective laser surgery after 2 years i.e. on 25th February, 2011. Being aggrieved of the said act of the OP, the Complainant filed CC before the District Forum and District Forum vide order dated 19.01.2015 dismissed the CC filed by the complainant. Aggrieved of the said order of the District, the complainant filed an Appeal before the State Commission which was also dismissed by the State Commission vide order dated 05.06.2018. Therefore, the Complainant is before this Commission now in the present RP.
Petitioner has challenged the said Order dated 05.06.2018 of the State Commission mainly on following grounds:
i. Respondent has acted negligently despite following admitted and factual position and eye measurement done by respondent with + 24 Dioptre was significantly bigger than the latter eye measurement of Petitioner done by other doctors.
ii. The OP had not measured both the eyes of the petitioner and only measured the right eye which was to be operated at that time and has violated the standard practice protocol.
iii. The OP has operated the complainant by SICS technique but charged fees of operation of Phacoemulsification technique.
iv. The respondent has implanted the said lens in the sulcus and not in the bag of petitioner’s right eye and without re-confirming the measurement of eye, inserted a bigger lens in sulcus of complainant’s right eye.
v. As second surgery was required to be done by Dr. Nishikant Borse, it suggests that first surgery done by respondent was wrong.
vi. The State Commission did not consider the medical version brought to the notice of the State Commission.
vii. The State Commission has erred in relying on the letter dated 22.01.2009 accepting the cheque of Rs.30,000/- as this document was not produced as evidence but was submitted with written arguments of the respondent and if State Commission had brought the said letter to the notice of the petitioner, they would have brought to the notice of the State Commission that said document was not in her handwriting.
viii. At the time of oral arguments, respondent admitted that wrong measurement of eye and A scan was done at the Surya Hospital.
ix. While carrying out surgery, intro ocular lens of + 24 dioptre was implanted and when complainant was examined by Dr. Kumar, it diagnosed that the measurement of complainant’s eye was + 19 dioptre. Even Dr. Nishikant Borse while carrying out surgery, has removed earlier IOL and implanted + 20 dioptre IOL.
x. The observation of State Commission that laser surgery carried out by Dr. Borse had given some relief to the complainant that residual refractive error was not permanent is baseless.
xi. If the first operation would have carried out properly, the petitioner would not have run from pillar to post for getting medical opinions and advice from number of experts and undergoing repeated operations.
xii. The Respondent has not done the surgery by Phacoemulsification technique and has resorted to SICS technique without intimating to the complainant.
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.
6.1 Counsel for the Petitioner apart from repeating the points which are stated in para 6, argued that due to failed operation, the Petitioner had to undergo two more operations by Dr. Borse and even in the appeal memo had negative the contention of full recovery. It is argued that when a patient had to undergo three operation for the same eye, it itself indicates deficiency in service. Further, it is argued that while ascertaining the compensation, the State Commission may consider the subsequent events but it cannot outrightly reject the claim and compensation despite proved defects and deficiency .
6.2. The Fora below have been totally misled in respect of adoption of Manual Small Incision Cataract Surgery method instead of Phaco ( laser ) method by the complainant. It is further argued that unless the patient is economically weak, the doctors never go for MICS method and prefer Phaco method as MICS method increases the chances of Iris injury, striate keratitis and posterior capsular rupture. It is further contended respondent had told the petitioner that he would do the operation by PHACO method and accordingly he charged her the fee of Rs.23,000/- and that respondent has not been able to explain as to why he had resorted to MICS method and while doing the operation manually, the bag was damaged and therefore, he implanted the lens in sulcus instead of inserting lens in bag in normal course.
6.3. Further, it is argued that due to wrong measurement of lens, respondent tried to implant + 24 diopter lens. Counsel has relied on the judgment of the Hon’ble Supreme Court in V. Kishan Rao Vs. Nikhil 2010 ( 5) SCC 513.
6.4 Counsel for the respondent argued that residual refractive error is an inherent risk factor that can take place and is a known fact in cataract operation. Further, method of performing lens extraction in any cataract surgery is the operating surgeon’s decision based on various pre operative and intra operative factors and at the time when surgical procedure is being conducted, on the spot decisions have to be taken. Further, respondent had never told the petitioner that only Phacoemulsification method would be used and which method is to be used is decided by the surgeon on the table. Further, respondent has taken all the care and caution while performing the surgery. It is further argued that respondent has returned Rs.30,000/- to the petitioner towards full and final payment and petitioner also received the above to her satisfaction and there are no issues pending then, which fact has been suppressed by the petitioner. Further, the respondent has treated the respondent by a line of treatment that is universally accepted and is in conformity with the treatment protocols. Proper history of patient was taken, past history was considered, thorough examination was done, all necessary investigations were performed and based on the results, a reasoned conclusion was arrived at. Further, it is argued that whenever any medical problem can be treated by more than one way, the treating doctor can choose the line of treatment he deems fit for the patient. Cataracts can be removed by both the methods i.e. SICS and PHACO. It is further argued that no expert opinion was brought on record. Further, petitioner suppressed the fact that she has undergone surgery of IOL at Wokhardit Hospital on 17.02.2009. Counsel further argued that no guarantee was given by the respondent regarding the result of surgery. Further, petitioner falsely averted that refraction error was permanent, however, same can be corrected. Counsel for the respondent relied upon the following judgments of Hon’ble Supreme Court / National Commission:
a. Jacob Mathew Vs. State of Punjab and Anr. 2005 ( 3) CPR 70 ( SC).
b. Kiran Bala Rout Vs. Christian Medical College and Hospital and Ors. 2003 ( 1) CPR 238 ( NC)
c. Inderjeet Singh Vs. Dr. Jagdeep Singh 2004 ( 2) CPR 45 ( NC)
d. Martin F D’Souza Vs. Mohd. Ishfaq, Civil Appeal No. 3541 of 2012
e. S.P.Chengalvaraya Naidu ( Dead ) by Lrs. Vs. jagannath ( Dead) by LRs and Ors.
f. Ramji Lal Vs. M/s Sarvodaya Medical, First Appeal No. 4 of 1993.
g. D.C.M.Data Products Vs. Hanuman Prasad Poddar Cancer Hospital,Gorakhpur, First Appeal No. 220 of 1993.
We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties. In this case, there are concurrent findings of both the Fora below that there was no deficiency in service and medical negligence on the part of OP / respondent herein in conducting cataract operation. State Commission after taking into account the entire facts of the case, case law and medical literature relied upon by the parties, have given a well reasoned order. Extract of relevant paras of order of State Commission is reproduced below:
“22. We are of the opinion that the correctness of the treatment of the complainant in respect of the calculation of the lens power, method of the surgical treatment of cataract, location of the placement of the intraocular lens is the subject matter of the experts. The court need not decide the correctness of the treatment when different schools of thought advise different lines of treatment. And hence based on the pleadings, evidence placed on record and the submissions of both parties, we find that there is no deficiency of service and medical negligence by the opposite party in the treatment of the complainant.
In the instant case, the appellant complainant herself is senior doctor whose right eye cataract surgery was performed by the respondent. In our view, the ophthalmic technician measured the power of lens with the help of machine A scan. There was an error of calculating the power of the lens on the part of the technician and hence the lens of power + 24 diopter was implanted in the right eye. Further the respondent operating surgeon operated by SICS technique which is one of the accepted method of cataract surgery In the post operative period, except for high power lens, there was no dreadful complication that resulted in loss of vision. Hence there was no damage suffered by the complainant from the cataract surgery which is an essential element of providing medical negligence. The complainant was stimulated by the comments of the optician who made glasses for her. It is admitted fact that based on her interaction with the operating surgeon, the cost of the treatment – cataract surgery, was refunded to her, which she accepted as full and final settlement.
We are of the opinion that the wrong measurement of the lens power was the error of judgment on the part of the technician, due to various responsible factors……..”
x x x x
In the instant case, we are of the opinion that the maxim res ipsa loquitur is not applicable since, it was the error of judgment and not negligence.
District Forum has also considered the case at length and came to conclusion that evidence adduced on record by the Complainant is not sufficient to hold opponent guilty of deficiency in service or medical negligence. Extract of relevant paras of the order of the District Forum is reproduced below:
“17) Though much was commented upon the evidence of Dr. Borse since Dr. Borse who has carried out second surgery of removal of IOL and implantation of corrected dioptre IOL has given his candid opinion. Therefore we are of the view that though the opponent has certainly committee an error while implanting the IOL of +24 dioptre. Residual refractory error occurred to her right eye was not an outcome or negligence on the part of opponent. On the contrary the opponent has performed cataract surgery of the complainant by observing required protocol of medical science.
18) It is true that opponent has used Small Incision Cataract Surgery System (SIC) instead of phacoemulsification technique. However on that alone count the opponent cannot be held negligent for performing the surgery of the complainant because it is the total discretion of the performing doctor to adopt technique either of the way because after all he is the best judge of the situation. Moreover, out of these two techniques what technique should be applied depend upon case to case from eye ball to eye ball and therefore operating doctor usually decide the final method on the table and therefore if the opponent has obtained for SICS method instead of phacoemulsification technique he cannot be branded as a negligent.
19) Lastly, it is also seen from record that when the complainant has shown her dissatisfaction with the surgery' carried out by the opponent when she has demanded the surgery charges the opponent has refund her Rs.30,000/- The complainant has accepted the same towards final payment and has further contended that no issue pending now. This commitment of the complainant goes unsaying that she has accepted Rs.30,000/- towards full and final settlement. Because of the said act of the complainant her further claim of compensation is not acceptable.
20) Therefore from the above discussion we have no hesitation to conclude that while taking the measurement intra ocular lens though there was some mistake, due to the said mistake no further damage of the complainant has occurred. On the contrary. Dr. Nishikant carried out subsequent surgery on the complainant even thereafter the vision of the complainant was not clear therefore complainant was required to undergo laser surgery. Therefore, the residual refractive error found with the complainant after the surgery cannot be said as outcome of cataract surgery of the complainant carried out by the opponent. Therefore we are of the opinion that the evidence adduce on record by the complainant is not sufficient to hold the opponent guilty for deficiency of service or medical negligence. Therefore we decide point No. 1 & 2 in negative and reject the complaint. Hence order.”
In Martin in F.D’Souza Vs. Mohd. Ishfaq (2009) 3 SCC 1, the Hon’ble Supreme Court has observed that -:
“34. A medical practitioner is not liable to be held negligence simply because things went wrong from mischance or misadventure ..... He would be liable only when his conduct fell below that of the standards of a reasonably competent practitioner in his field.”
In Jacob Mathew v. State Of Punjab & Anr. (2005) 6 SCC, the Hon’ble Supreme Court has observed that-
“The essential components of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say:-
the existence of a duty to take care, which is owed by the defendant to the complainant;
the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant.”
In Harish Kumar Khurana v. Joginder Singh, (2021) 10 SCC 291, it was held by the Hon’ble Supreme Court that-
“16. Having noted the decisions relied upon by the learned counsel for the parties, it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception.”
As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269] that 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.”
The Hon’ble Supreme Court in Rajiv Shukla vs Gold Rush Sales And Services Ltd. Civil Appeal No. 5928 of 2022, decided on 8th September, 2022, held that:-
“13. As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.
In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act.”
In this case, no doubt there was wrong measurement of the lens power, but this power of lens was measured by the technician and not the OP doctor who performed the surgery and implanted lens of the wrong power. But the Complainant did not implead the technician as one of the OP in the Complaint before the District Forum. Only doctor was impleaded as OP. In our opinion, the OP doctor cannot be held responsible for the wrong measurement of lens power by the technician.
In view of the foregoing, we find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld. Accordingly, RP is dismissed.
The pending IAs in the case, if any, also stand disposed off.