No negligence in sinus surgery case with post-operative eye complications, Consumer court grants relief to doctor
No Medical Negligence
New Delhi: While dismissing a medical negligence complaint against a doctor, the National Consumer Disputes Redressal Commission (NCDRC) recently observed that medical negligence must be proved through cogent evidence and cannot be inferred based on bald and unsustainable allegations.
Furthermore, the Apex Consumer Court noted that any post-operative complications cannot be equated with medical negligence on the part of the treating doctors.
The Bihar-based doctor was accused of medical negligence while conducting a surgery on a patient suffering from chronic maxillary sinusitis. After the surgery, the patient allegedly developed complications in the eye.
However, the NCDRC bench observed that apart from alleging medical negligence, the complainant could not establish by suitable evidence how the doctor was negligent in the surgery conducted.
"There is force in the arguments advanced on behalf of the respondent that the medical negligence has to be proved through cogent evidence and cannot be inferred on basis of bald and unsustainable allegations and the petitioner could not establish medical negligence on the part of the respondent. It is equally true that the post operation complication if any cannot be equated to medical negligence of the doctor. We are in agreement with the contention of the respondent that the petitioner has failed to substantiate its allegations of negligence on the part of the respondent," observed the top consumer court while dismissing the complaint, and upholding the decision of the State Consumer Court.
The history of the case goes back to 2008, when the patient, suffering from a runny nose, approached the treating doctor. The doctor prescribed several tests, and based on the reports, he informed the patient that he was suffering from a 'dangerous disease' and therefore recommended a surgical operation.
It was alleged that after the surgery, the petitioner had swelling in his eye, and the eyeball and eyelid were not moving. Even though he remained under the treatment of the doctor, his condition continued to deteriorate and he was referred to Lucknow for further and better treatment. He was admitted to the casualty department of Gandhi Memorial Association Hospital, where a CT scan was performed and the report revealed the "operated case showing surgical bony defect in Antero-inferior and Superior wall of left maxillary sinus with air collection in posterior part of left orbit and in cheek with surrounding soft tissue inflammation with left maxillary sinusitis and rhinitis."
Further, the petitioner alleged that he was informed at the hospital that his left eye was damaged due to the operation, and another eye was also affected, which could be treated. The patient was treated at Lucknow for 10 days and after treatment the petitioner was informed that one of his eyes was completely damaged.
Alleging that he lost one of his eyes due to the negligence of the treating doctor, the petitioner filed a consumer complaint and prayed for compensation along with legal costs.
On the other hand, the doctor opposed the complaint and submitted that the petitioner was suffering from chronic maxillary sinusitis for last seven years, which caused tiredness, weakness, feverish, faintness and sometimes was not able to see surroundings. The lymphocytes after investigation came to 53% which was indicative of chronic infection since long. The ESR was reported at 17mm which reflects chronic infection and tissue damage. The WBC (White Blood Cell) count also indicated chronic and prolonged infection. After taking consent from the petitioner's brother, the surgery was done on the left side of the maxillary chronic sinus infection on 19.12.2008 with proper medical care.
Regarding the allegation of the petitioner's loss of eyesight, the doctor submitted that the patient himself was negligent and responsible. Even though he was advised to take proper rest, he allegedly started doing work of welding work after the surgery. He also ignored the advice for proper medical treatment at the eye centre.
The radiological report showed bony defects which might have been there before the operation, as the petitioner was dealing with welding work with iron rods and sticks, alleged the doctor, further claiming that the surgery was conducted with a lot of care and he did nothing with the eye and there was no connection between the surgical procedure and the eye ailment of the petitioner.
The District Commission held the doctor guilty of medical negligence and directed him to pay Rs 1,50,000 for the complete loss of the left eye of the petitioner, along with Rs 40,000 for expenditure of medical treatment, along with Rs 10,000 for harassment and cost of litigation.
However, later, the State Consumer Court set aside the District Commission's order, primarily observing that there was no medical evidence to establish faulty operation or medical negligence on the part of the treating doctor, which could have been explained by a medical expert. Aggrieved by this, the petitioner filed the appeal before the Apex Consumer Court.
While considering the matter, the NCDRC bench noted that the top consumer court in the case of Dr. B. K. Choudhary V Barjhi Devi & others had noted that negligence can be normally explained as a breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
The bench also noted that the Supreme Court in the case of Laxman Balakrishna Joshi V Trimbak Bapu Godbole & another had noted that the duties which a doctor owes to his patient are clear and a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he possessed of skill and knowledge for the purpose.
It was further held that such a person when consulted by a patient owes him certain duties which are 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 and a breach of any of those duties gives a right of action for negligence to the patient. Reliance was placed on several other Supreme Court judgements including in the case of Neeraj Sud & another V Jaswinder Singh (minor) & another, in Jacob Mathews V State of Punjab, and in Deep Nursing Home and another V Manpreet Singh Mattewal and others etc.
Referring to these legal precedents, the Apex Consumer Court observed that the CT Scan of the petitioner, performed on 04.01.2009, mentioned, "operated case showing surgical bony defect in Antero-inferior and Superior wall of left maxillary sinus with air collection in posterior part of left orbit and in cheek with surrounding soft tissue inflammation with left maxillary sinusitis and rhinitis."
At this outset, the consumer court observed,
"There is nothing in the report of CT scan which can indicate any negligence on part of the respondent. We are not convinced with the contentions and arguments advanced on behalf of the petitioner. The petitioner also challenged the impugned order in present revision petition primarily on grounds that the State Commission has failed to appreciate entire case properly and failed to interpret C.T. Scan Report correctly which clearly demonstrate negligence on the part of the respondent but these grounds are not convincing to set aside the impugned order."
Referring to the District Commission's order, the NCDRC bench noted,
"The District Forum wrongly held the respondent guilty for medical negligence and deficiency in service and the petitioner succeeded in proving medical negligence on the part of the respondent by adducing evidence and by producing medical report of the treating doctor of G.M. & Associates Hospital, Lucknow from 03.01.2009 to 12.01.2009 as well as CT scan of the paranasal sinuses from the Department of Radio Diagnosis of the aforementioned hospital in Lucknow. The said observations of the District Forum are not supported and corroborated by necessary medical documents."
NCDRC observed that the State Commission rightly observed that there was no medical evidence to establish faulty operation or the medical negligence on the part of the respondent, which could have been explained bya medical expert, and it was for the petitioner to establish the medical negligence by cogent evidence.
"The State Commission rightly held that the medical negligence on the part of the doctor cannot be establish without cogent evidence and cannot be gathered from mere allegation or unexplained medical report. We are in agreement with the observations and findings of the State Commission in impugned order," it observed.
"The respondent (doctor) appeared to have conducted surgery as per established procedure and protocol. The respondent has acted like a reasonable man on considerations which ordinarily regulate the conduct of human affairs. There was no apparent or noticeable omission on the part of the respondent in performing surgical operation of the petitioner. The respondent has taken appropriate care in the operation of the complainant. The respondent as per Bolam Rule had exercised the ordinary skill of an ordinary competent man in the treatment of the respondent. The respondent while operating the petitioner was possessing appropriate skill and knowledge. The Supreme Court in Jacob Mathew V State of Punjab clearly observed that a surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial to the extent of 100% for the person operated on and the only assurance which can be given is that he is possessed of the requisite skill in that branch of profession which he is practicing. It is correct that the petitioner post operation developed complications in the left eye but deterioration of the condition of the patient post-surgery is not necessarily indicative or suggestive of the fact that the surgery performed or the treatment given to the patient was not proper or inappropriate or that there was some negligence in administering the same. There is no evidence to prove that the respondent failed to exercise due diligence, care or skill while performing surgery. The respondent cannot be held liable for medical negligence due to mere fact that the petitioner developed complications in the left eye. The respondent conducted surgery in good faith for the benefit of the patient i.e. the respondent," it observed.
Accordingly, the Commission observed that the petitioner failed to discharge the burden of establishing negligence of deficiency in service on the part of the treating doctor.
Dismissing the consumer complaint, it held, "The State Commission passed the impugned order on basis of convincing reasoning and after proper appreciation of material on record. There is no reason to interfere in the impugned order passed by the State Commission. The State Commission has not committed any illegality or material irregularity while passing the impugned order. The scope of revision petition before the National Commission is limited. The present revision petition is devoid of any merit and hence dismissed. The pending application if any also dismissed."
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/ncdrc-no-medical-negligence-309320.pdf
