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CASE STUDY - by Anoop K. Kaushal
MARCH 2012

LIMITED NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE”

Ram Avatar Sharma v. Dr. Nabin K. Pattanaik

First Appeal No. 431 of 2006 pronounced on 25th January, 2012 by the National Consumer Disputes Redressal Commission.
The appellant/complainant had alleged that he had been suffering from Glaucoma in both the eyes and lost sight of the left eye way back in 1978. Since 1992 he started taking regular treatment for the right eye from the respondent/OP. In April 1992 the respondent also diagnosed Cataract in the eye and operated it on 17-12-1992. During the Cataract surgery, the right eye of the complainant bled profusely and vitreous also leaked out, as a result of which the complainant went blind in the right eye also. During the post-operative check-up on 6-1-1993, the condition of the right eye remained the same. On consultation with several other Doctors, the complainant was advised that the loss of vision of the right eye was on account of negligence of the respondent/OP in the surgery for Cataract on the appellant’s right eye. Hence, the appellant/complainant filed a complaint with the State Commission and claimed a total compensation of  ` 9,96,800.
The respondent claimed that after obtaining his MD Degree in Ophthalmology from the All India Institute of Medical Science (AIIMS) in 1978, he had set up an Eye Institute with all the requisite and modern equipment and facilities for treatment of various ophthalmological problems, including necessary surgery as well as post-operative care. Appellant/complainant had been suffering from Glaucoma in both the eyes for many years, for which he was being treated by various ophthalmologists at Meerut. Way back in 1978, his left eye had been damaged completely because of the same ailment. Subsequently, he developed Cataract in his right eye, in addition to Glaucoma that had already developed. He approached the respondent/OP for treatment in 1990 with complaints of constant pain and high intra-ocular pressure in the right eye which still had some vision. Because of infrequent/irregular treatment, he had also developed complication of adhesion of the iris and lens. The respondent/OP performed a laser-assisted procedure to correct this complication. However, the appellant/complainant developed bleeding in the right eye. To treat this, the respondent/OP had to remove a part of the vitreous, as a result of which there was improvement in the vision to some extent and the appellant/complainant followed up with regular treatment for some time. However, he once again developed intra-ocular pressure for which he consulted several Doctors and also visited Shankara Netralaya, where the diagnosis and the suggested management were the same as he had been given by the respondent/OP. He checked the appellant/complainant and treated him regularly during August 1990 – April 1992 and during that period his regained vision was maintained. The appellant/complainant was fully satisfied with the treatment and that is why he continued to consult the respondent/OP for two years. Subsequently, the appellant/complainant contacted several other Doctors and in whose opinion the intra-ocular pressure was due to long standing aphakic Glaucoma. The complainant’s complications were not due to deficiency in medical treatment rendered by the respondent/OP but because he was irregular in taking medication and follow-up and the process of natural decay due to his general ageing. The procedure which the respondent/OP adopted to treat the right eye of the appellant/complainant was according to the standard protocol and with due care.
On examination of the pleadings, evidence and documents brought on record by the parties, the State Commission came to the following conclusions:
8.    Record shows that from December to April the complainant did not visit the OP and to say that he was not given any appointment is difficult to accept. If the complainant had obtained appointment he would not have suffered and there is sufficient material on the record that he had contacted other doctors because of the problem and diagnosis of synechia, i.e., adhesion of iris and lens.
9.      Now we come down to the operation of glaucoma through YAG Laser Synechiotomy (non-invasive laser surgery). This operation was performed to separate the iris from the lens. According to the complainant he developed some kind of bleeding and in order to reduce it into glaucoma OP removed vitreous which was mingled with blood. Since there was little improvement in the vision of the complainant he followed the treatment for one or two weeks. The complainant developed again intra-ocular pressure and he consulted a number of doctors including Shankara Netralaya who gave the same opinion and medicines as well as the diagnosis as was done by the OP.
10.    YAG Laser Synechiotomy is a non-invasive laser surgery and, therefore, the internal bleeding for continuous 14 days is not explainable nor can OP explain the puncture of vitreous which resulted in loss of vitreous but the vitreous while being removed was mingled with blood. Nor could the OP explain the reduction of the nerve. There are two opinions about the laser surgery. One is that of Dr. S. K. Sharma who did not have occasion to examine the complainant and second opinion which is also permissible in the medical science is the course adopted by the respondent/OP. OP is not highly qualified but highly experienced surgeon. He was well equipped to provide the required treatment. He performed operation YAG Laser Synechiotomy (non-invasive laser surgery) to separate the iris from the lens. He detected some kind of bleeding and in order to reduce it into glaucoma he removed vitreous which was mingled with blood. There was little improvement in the vision of the patient and forthwith followed the treatment for one or two weeks. Complainant again developed intra-ocular pressure. Complainant consulted number of doctors and also visited Shankara Netralaya where the diagnosis, management and opinion were the same which he had given to the complainant earlier. This shows that there was no medical negligence on the part of the OP in respect of the operation which was a standardised treatment and it was because of the pre-disposed complications at (sic - ‘of’?) the complainant that were not assessed by the OP for which we hold the OP guilty for limited deficiency in service, i.e. negligence. Complainant was a case of glaucoma and therefore, OP should have as a matter of abundant precaution checked the pressure of the eye and measured it by tonometer and if it was found high it should have been released first. However, this was not the cause of going blind. Complainant has contributed to it by not taking post-operative care and not attending the clinic for four long months.
11.    Taking overall view of the matter and aforesaid limited negligence of the complainant OP coupled with contributory negligence, we deem that a lump sum compensation of  `25,000  would meet the ends of justice. The payment shall be made within one week.”
Held:  (i) The State Commission’s finding of “limited negligence” against the respondent ophthalmologist is conjectural and unsupported by any cogent and reliable medical evidence. In the impugned order, there is no discussion of any medical record to support the conclusion that before undertaking the laser synechiotomy, the respondent ophthalmologist did not take standard precautionary steps to deal with the existing condition of the petitioner’s eye that was glaucoma-affected. We are also unable to see on record any medical document that would support the State Commission’s observation that the respondent did not take steps to normalise the intra-ocular pressure in the eye in question before undertaking the laser-based treatment. When the State Commission clearly found that there was no deficiency in service on the part of the respondent in conducting the laser-based synechiotomy and that the follow-up directions and management were also in accordance with the standard protocol in this regard and that the petitioner/complainant was himself guilty of “contributory” negligence by not attending the follow-up clinic for four long months after the procedure, it is indeed difficult to appreciate how the respondent was simultaneously guilty of “limited negligence”.
(ii)    The settled law on the subject of medical negligence requires that to hold a medical practitioner guilty of professional negligence, the standards of an ordinary practitioner of that discipline will have to be applied, not those of the highest order of skills and expertise nor of the lowest. Moreover, the allegation (s) will have to be established on the basis of medical record and, as far as feasible, expert opinion or medical literature on standard practices and procedures. It is clear from the impugned order and the records brought before us that the finding of the State Commission against the respondent falls woefully short of these requirements, particularly the latter.
(iii)   However, in view of the fact that the respondent/OP has not challenged the impugned order of the State Commission, it has attained finality qua the respondent in accordance with the provisions of section 24 of the Consumer Protection Act, 1986 and hence, despite the foregoing discussion, the award of the State Commission qua the respondent cannot be disturbed.
(iv)   On the other hand, in the facts and circumstances of the case, there is absolutely no room for enhancement of the compensation as prayed for by the appellant/complainant in this appeal.
(v)           As a result, the appeal is dismissed, leaving the parties to bear their own costs.

 

 
 
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