IN THE STATE COMMISSION�� : DELHI
( C o n s t i tu t e d u n d e r S e c t io n 9 c la u s e ( b ) o f th e C ons u m e r P r ot e c t i o n A c t , 1 9 8 6 )
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Date of Decision: 23-11-2007���������������������������������������������� ������������������������������������
Appeal No. A-1069/2004
(Arising from order dated 22-11-2004 passed by District Forum(East), Saini Enclave, Delhi in complaint Cases
No.253/2004)
��
Dr. N.L. Vaish,�������������������������������������������� �������������������������������������������� ���� Appellant
Dr. VaishEye Research Centre, Through
19/3, Rashid Market, Mr. R.K. Jha,
Chander Nagar, Advocate.
Delhi-110051.
�������������������������������������������������� �������������������������������������������������� ������������������ Versus
��
Smt. Bachuli Rawat,�������������������������������������������� ������������������������ Respondent
House NO. A-7/T-1, Through
Dilshad Garden, Mr. M.S. Rawat,
Delhi. Advocate.
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, PRESIDENT (ORAL)
On the charge of negligence while performing the operation on the cornea of the left
eye of the respondent which was damaged to the extent that there was no other option than
replacement of the cornea the appellant has been, vide impugned order dated 22-11-2004
passed by the District Forum, directed to pay compensation of Rs. 50,000/- including Rs. 7,500/-
which the appellant had voluntarily offered to the respondent.
2. Feeling aggrieved, the appellant has preferred this appeal.
3. Allegations of the respondent leading to the impugned order, in brief, were that she was
operated for cataract in the left eye on 12-12-2002. Her son paid a sum of Rs. 7,500/- for this
operation. But the condition of the left eye of the respondent worsened after the operation.
Appellant was regularly consulted about the conditions. Finding no improvement, appellant
referred to MM Eye Tech, Eye Institute on 27-12-2003 for further consultation. There Dr. Madan
Mohan examined her and after examining her, Dr. Madan Mohan opined that cornea of the
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left eye is completely damaged and there was no chance of its recovery except replacement.
During this period, she consulted other doctors also and all concurred with the opinion of Dr.
Madan Mohan. When this fact was brought to the knowledge of the appellant finally on 08-
022004, appellant offered to pay a sum of Rs. 7,500/- ( which the appellant charged at the time
of operation) to the respondent but she refused to accept the sum of Rs. 7,500/- being
inappropriate. She further pleaded that appellant did not get pre-operational pathological
test. She pleaded that the total cost of replacement of cornea is Rs. 90,000/-. She prayed for
direction to the appellant to pay a sum of Rs. 1,83,000/- as cost and compensation.
4. The impugned order is being mainly assailed on the strength of medical literature that
complication in the form of damage to the cornea has occurred due to non-following of
instruction or medication by the respondent. As such damage is natural consequence of
developing certain complications after the operation for cataract removal operation is
performed. Thus there is no dispute that after the operation, the left eye of the respondent was
damaged. Medical literature relied upon by the counsel for the appellant are –
(i) Secrets if ECCE and IOL
Q. What are the blinding complications of IOL surgery ?
Ans. Chronic cystoid macular oedema
Retinal detachment
Severe uveitis
Secondary glaucoma
Recurrent intraocular hemorrhage
Expulsive hemorrhage
Endophthalmitis.
(ii) Eye Donationa – A gift of Sight.
Common causes of Corneal Blindness are –
�� Infections.
�� Injuries.
�� Chemical Burns.
�� Malnutrition.
�� Congenital disorders.
�� Post operative complications or infections.
5. The main grievance of the contention of the counsel for the appellant is that the
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problem arose due to post-operative complications or infections as the respondent was
negligent in not taking requisite precautions as prescribed by the appellant in the prescription
slip. These directions were –
�� Nebracin eye ointment – in the night.
�� Wysolone – 1 BD x 5 days
�� Tab Zenetac 1 OD x 5 days
�� Iopar - 1 OD x 5 days
�� Eye drop
6. So much so respondent even took medicine from outside sources also and consulted
other physicians and other doctors.
7. While refuting the aforesaid defence of the appellant the learned counsel for the
respondent has contended that circumstance of the respondent remaining under treatment
for 12 months after operation as the cornea was not damaged overnight but gradually.
Respondent has placed reliance upon the reference made by the appellant for her treatment
to another doctor which is as under:-
“Smt. Bachoti Rawat aged 56 y/F was operated at our eye center on 11-12-
2002 for cataract operation ( LE). P C IOL (Phaco). D ue to raised IOP she
developed corneal haze post operatively. After treatment her vision in LE improved
to 6/9. Due to persistent raised IOP in LE she developed corneal haze. She was
referred to Prof. Madan Mohal.
A s a goodwill gesture and maintaining a good patient-doctor relationship
we are refunding an amount of Rs. 7,500/- through C. No. 125937 of Jain-
Cooperative Bank Ltd. they paid at the time of operation.”
8. To ascertain the medical negligence, cumulative conclusions drawn from various
decisions starting from Bolam’s case and followed by catena of decisions of Supreme Court 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
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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?
References :-
(i) Bolam’s case reported in (1957) 2 AII ER 118, 121 D-F
(ii) Sidway V. Bethlem Royal Hospital Governors and Others – 643 All England Law
Reprots (1985) 1 All ER.
(iii) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports
(1985) 1 All ER.
(iv) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(v) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651.
(vi) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369.
9. We have perused the entire medical literature produced by the appellant as well as the
reference note of the appellant. What is relevant for deciding the question whether the
appellant was negligent in performing the cataract operation or not is the blinding
complications of the IOL surgery. According to the medical literature the complications that
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can arise in such operations are chronic cystoid macular oedema, corneal decompensation,
retinal detachment, severe uveitis, secondary glaucoma, recurrent intraocular hemorrhage,
expulsive hemorrhage, endophthalmitis. There is no such complications undergone by the
respondent which arises out of OIL surgery. These complications arise irrespective of the
operation being performed. But complication of damage to the cornea is not blinding
complication of IOL surgery and as such it is result of some or other kind of negligence or
imperfection or inadequacy while conducting the operation. We are supported by this view
through international medical litrature by Allan E. Kolker and Lisa F. Rosenberg on the subject as
to how corneal damage caused. The literature prescribes as under:-
“Corneal Damage – Corneal endothelial injury from cataract surgery may lead to
corneal decompensation (Fig. 4-24). The use of preoperative specular microscopy,
intraoperative viscoclastic agents, newer intraocular lens designs and
phacoemulsification in the capsular bag has decreased the incidence of
postoperative corneal edema caused by endothelial trauma. When it does occur,
it should be treated with frequent administration of topical hypertonic solutions and
ointments to deturgess the cornea while the endothelium recovers. It is also
important to maintain normal intraocular pressure with antiglaucoma medications
during this period, because elevated pressure can cause further endothelial
damage.”
10. Here is a person who had been visiting appellant for about one year. In such type of
cases inference are drawn from consequence or the result of the operation, may be of any
kind. If such damage can be caused to the cornea, as caused in this case, by non-observance
of certain post-operative instructions then there is no other inference than there was some
negligence in the performance of the operation. There may be different kinds of complications
or problems that a person may encounter because of non-observance of given instructions but
not the kind of damage to the cornea howsoever negligent the patient might have been. In
such cases it is the obligation of the doctor to maintain normal intraocular pressure with
antiglaucoma medications and no patient should and can be advised to maintain himself such
a normal intraocular pressure and any instructions given by any doctor in this regard to any
patient itself amounts to negligence. However, we feel inclined to give some concession to the
doctor who was a skilled doctor and had the knowledge and was competent to attend to the
problems faced by the respondent and there may be some kind of lapse here or there that
might have caused the damage to the cornea which was detected after one year as the
negligence was not of such enormity that caused the damage to the cornea instantly. In our
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experience in cased of eye operations etc. the patient also does not follow the instructions fully
and get some or other kind infection which may have aggravated the problem, however, the
original negligence in conducting the operation cannot be excused.
11. In our view the district Forum has awarded compensation on the higher side. We also
cannot be oblivious of the fact of refunding the fees charged by the appellant while referring
the case of the respondent to another doctor. In the result we partly allow the appeal by
reducing the compensation to Rs. 30,000/- besides Rs. 5,000/- as cost of litigation.
12. Appeal is partly allowed to the aforesaid extent.
13. Appellant shall make the payment within one month from the date of receipt of this
order.
14. A copy of this order as per the statutory requirements, be forwarded to the parties free of
charge and also to the concerned District Forum and thereafter the file be consigned to
Record Room.
15. Announced on the 23rd November, 2007.
(Justice J.D. Kapoor)
President
(Rumnita Mittal)
jj Member
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