IN THE STATE COMMISSION:DELHI

(Constituted under Section 9 of The Consumer Protection Act, 1986)

Date of Decision: 22-02-2008



Appeal No. 1684/2003

(Arising out of Order dated 03-07-2003 passed by the District Forum-II, Qutub Institutional Area, New Delhi, in Complaint Case No.1652/2001)



Mr. Krishna Mani Dube,

S/o. Shri Gopi Nath Dube,

5/372, I-Block, Sangam Vihar,

New Delhi. . . . Appellant

Through Ms. Vandana Sharma, Advocate



Versus

1. Dr. M.C. Jha,

Dr. Jha’s Eye Care Clinic,

Charmwood Village,

Faridabad,

Haryana. . . . Respondent No.1

Through Mr. Sandeep Kapur,

Advocate





2. The New India Insurance Co. Ltd.

Office Unit 310601,

M-66, Greater Kailash-I,

New Delhi 110048. . . . Respondent No. 2



CORAM:



Justice J.D. Kapoor, President

Ms. Rumnita Mittal, Member

1. Whether Reporters of local newspapers be allowed to see the judgment?

2. To be referred to the Reporter or not?

Justice J.D. Kapoor (Oral)



1. The respondent is a qualified and skilled Eye Surgeon. Appellant approached him for the treatment of his eye ailment. He was given one injection in the eye for three consecutive days and thereafter one injection in the waist region for four days. Medicines for seven days were also prescribed. However, thereafter another injection was given with the advice that six more injections were required. Since the appellant did not feel any relief, he went to Dr. Rajendra Prasad Ophthalmic Centre at AIIMS where he was given standard therapy for Corneal Ulcer Perforation in the form of the therapeutic Keraloplasty but unfortunately he lost vision in the affected eye.



2. According to the appellant it was due to the negligence of the respondent that the subsequent complication developed and consequently filed the instant complaint seeking compensation of Rs. 4.00 Lac.



3. Vide impugned Order dated 03-07-2003 passed by the District Forum the complaint was dismissed on the report of the Rajendra Prasad Ophthalmic Centre, AIIMS, who had diagnosed him as a case of Left Corneal Ulcer. Feeling aggrieved, the appellant filed this appeal.



4. The main contention of the counsel for the appellant is that the appellant was not informed about the possible complication of Ulcer in the eye while he was being administered injection for so many days. However, no material has been produced by the counsel for the appellant to show that the line of treatment or the therapy adopted by the respondent-Doctor was not correct.



5. The respondent-Doctor, in his defence, averred that the appellant approached him at his clinic at Faridabad on 11-10-2000 with Hypopyon Corneal Ulcer and was explained about the gravity of the disease and poor visual progress and also about the complications that may arise. He was advised admission at Majeedia Hospital for proper investigation and twice a day sub-conjunctivital anti-biotic injection but due to financial reasons the appellant was not willing to undergo the said treatment. As per the respondent he is a qualified Surgeon and giving sub-conjuntivital injections is as easy for him as giving an intra-muscular injection for an MBBS general practitioner.



6. The report of AIIMS relied upon by the District Forum suggests that therapy for Corneal Ulcer Perforation was undertaken at the Ophthalmic Centre and so far as corneal perforation is concerned, it is a known complication and sequel in cases of non-responsive corneal ulcer and can occur during the treatment.



7. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolam’s case reported in (1957) 2 AII ER 118, 121 D-F still holds the field. This test, in popular parlance is known as ‘Bolam Test’ after the name of the petitioner. In short the test is as under:-

“[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill…. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art” (Charles worth & Percy, ibid., para 8.02)



8. Bolam test was accepted with approval in the following judgments:-



(i) Sidway V. Bethlem Royal Hospital Governors and Others – 643 All England Law Reprots (1985) 1 All ER.

(ii) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.

(iii) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.



9. Presumably because of persuasive value of Bolam’s case, our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Ors (1995) 6 SCC 651 wherein Bolam’s case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew V/s. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of the Supreme Court are as under:-

“(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.



(i) The test for determining medical negligence as laid down in Bolam’s case, WLR at p. 586 holds good in its applicability in India.”

10. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are:-

a. That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.



b. Hazard or the risk taken by the doctor should be of such a nature that injury, which resulted, was most likely imminent.





11. The test for holding the medical professional liable for negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the negligence or deficiency means “any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service” (Section 2(1)(g)).



12. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-

(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?

(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?

(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?

(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?

(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?

(vi) Everything being in place, what was the main cause of injury or death? Whether the cause was the direct result of the deficiency in the treatment and medication?

(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?



13. Here, the respondent-Doctor is a qualified and skilled eye surgeon. There is no material allegation about the line of treatment given by him not being as per established medical practice and procedure. However, the appellant states that he being a poor person and simple man should have been informed about the risk of corneal perforation in spite of the treatment and that he might lose eye sight as well.



14. However, the respondent has produced the OPD Card wherein everything was explained to the appellant. Even if it is established that this was not explained still the appellant was to be given the same treatment as was given by the respondent-doctor since the medical literature shows as was also the opinion of AIIMS doctors that Corneal Perforation is a known complication and sequel in cases of non-responsive corneal ulcer and can occur during the treatment as was in the case of the appellant.



15. Since the appellant was having Hypopyon Corneal Ulcer in the left eye and correct treatment was given by the respondent-doctor and corneal perforation can occur despite treatment as opined by the AIIMS / R.P. Centre for Ophthalmic Sciences, and as a matter of fact he was also treated by the AIIMS doctors, we do not find any infirmity in the finding returned by the District Forum nor do we find any negligence on the part of the respondent-doctor.



16. In the result, the appeal is dismissed being devoid of merits. Appeal is disposed of in above terms.



17. Copy of orders, as per statutory requirement, be forwarded to the parties and the concerned District Forum and thereafter the file be consigned to record.







(Justice J.D. Kapoor)

President







(Rumnita Mittal)

Member

HK