IN THE STATE COMMISSION:DELHI
(Constituted under Section 9 of The Consumer Protection Act, 1986)
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Date of Decision: 13-11-2006
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Complaint Case No.250/1996
(Old No.C-189/1994)
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Shri Darshan Ram,
S/o. Shri Kartara Ram,
R/o. D-1/46, Lodhi Colony,
New Delhi 110003. . . . Complainant
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Versus
Dr. Suresh Garg,
Eye Surgeon,
Regn No. 16760/80,
Residence-cum-Clinic
A-2/56, Paschim Vihar,
New Delhi 110063. . . . Respondent
Through Mr. P.D. Gupta,
Advocate
CORAM:
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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?
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Justice J.D. Kapoor (Oral)
1. The complainant who was a Central Govt. employee has filed this complaint alleging
negligence and deficiency in service on the part of OP Dr. Suresh Garg on account of which
the complainant became almost blind & had to opt for voluntarily retirement. Compensation of
Rs. 9,85,023/- has been claimed.
2. Briefly, the facts of the care are that the complainant was a Central Govt. employee.
From the beginning of the year 1988, the complainant felt slight fall in his vision. Dr. S.P. Kumar
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diagnosed the complainant a case of advanced glaucoma. The complainant contacted Dr.
S.K. Garg, the OP for confirmation of the diagnosis by Dr. S.P. Kumar on 3.4.88. Dr. S.K. Garg
conducted the check up of the complainant and opined stop Diomex and come for review
after four weeks and assured the complainant to remove his glaucoma without operation and
restore the vision with medicines alone.
3. The complainant was not with the advice rendered by Dr. S.K. Garg and, therefore, went
to Dr. S.P. Kumar, Eye Surgeon, on 9.4.88 who advised new eye drops Vasicow. The
complainant again went to Dr. S.K. Garg. Dr. S.K. Garg advised the complainant to stop the use
of Glaucomol eye drops and advised introduced new eye drop Clearine Eye Drops. On the
basis of the assurance given to the complainant by Dr. S.K. Garg in emphatical terms to control
the Glaucoma without operation. Complainant stopped the treatment and completely
neglected the advice of Dr. S.P. Kumar for operation.
4. On 18.12.83, the OP advised the complainant to use vision glasses and recommended
the degree/number of the vision glasses as for right eye vision, 6/36 with number 2.50, left eye
vision 6/6, with number – 3.00/minus 0.50 9. Complainant got prepared the spectacle and
started using in January, 1989 and kept on using for 1 ½ year i.e. upto June, 1990. During this
period the complainant did not experience much difficulty. Towards the end of January, 1992,
OP after check up told the complainant that operation is unavoidable and the operation of the
right eye is to be conducted without further loss of time. Complainant’s right eye was operated
upon for cataract and left eye for glaucoma and after operation complainant became blind in
his right eye. The left eye of the complainant was operated for Glaucoma by the OP on 20.3.92.
5. Complainant had been blind in his both eyes and he being a Govt. employee cannot
remain employed without eye sight even for a day. The complainant could not get the
operation done for his glaucoma only because Dr. S.K. Garg kept on giving false assurances
that he will control the glaucoma with medicines alone. Complainant requested his
department for voluntary retirement instead of compulsory retirement on medical ground. The
Head of Department was kind enough to allow voluntary retirement to the complainant.
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6. T h e complainant through the instant complaint has claimed Rs. 9,85,023/- for the
deficient, negligent, careless, rash and imperfect services rendered by the OP to him.
7. Denying the allegations, the OP stated that the complaint is barred by time and as such
is liable to be dismissed out-rightly. The cause of action, if any, arose on 03.04.1988 when the OP
allegedly assured that operation is not required and it further arose on 10.02.1992 when the
operation was conducted. The complainant approached the OP in the first week of April, 1988.
On thorough examination, the OP found the tension (intra ocular pressure) of the complainant
very low to the extent of 7.1 mm of mercury while in the normal course, it should be within 15 to
20 mm of mercury. The OP advised the complainant to stop taking Tab. Diamox. The
complainant came to the OP only on 26.04.1988. The operation was not necessary to be
carried out immediately in so many cases of glaucoma. The treatment of glaucoma is, in the
first place, always with medicines and operation only as a last resort. After December, 1988 the
complainant contacted the OP in the first week of February, 1992.
8. It is denied that the OP became blind after the operation of his right eye. The operation
of second eye of the complainant was conducted on 20.03.1992. It was made clear to the
complainant in advance that the restoration of normal vision was impossible and the restoration
of good vision was also not sure inspite of operation. It is denied that the OP intentionally,
deliberately or malafidely delayed the operation for glaucoma.
9. From the aforesaid rival contentions of the parties there are two questions that need to
be determined. First is, whether complainant had after showing his eyes to the O.P. in
December, 1988 contacted the O.P. for the first time in February, 1992 or in between also after
consulting Eye Surgeon Dr. Kumar on 09-04-1988 he reverted back to the O.P. for further
treatment; and the second question is, whether the operation conducted by the O.P. was
negligent in first not advising the complainant to undergo the operation immediately when he
contacted him in December, 1988 and whether the O.P. was negligent in conducting the
operation in February, 1992?.
10. A s regards the visits of the complainant in December, 1988 there is no dispute.
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According to the O.P. the complainant thereafter came to him in June, 1989 and as per
prescription slips shown to him on 24-12-190 and thereafter he came to the O.P. in February,
1992. The main allegation of the complainant is that once Dr. S.P. Kumar had advised him in 198
to undergo an operation there was no reason for the respondent to postpone the operation till
December, 1990 as he had not advised the complainant at any stage, between December,
1988 to December, 1990, that his eye was fit for operation.
11. As regards the operation conducted by him in February, 1992 the O.P. has taken the
plea that glaucoma is not 100% curable by operation or by medicines but it is only controllable
and the damage already done cannot be reversed. He further contended that between
December, 1988 to December, 1990 the glaucoma was being controlled and, therefore, the
respondent did not deem it necessary to operate immediately in December, 1990.
12. 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 hold 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)
13. Bolam test was accepted with approval in the following judgments:-
(I) S idway 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.
14. Presumably because of persuasive value of Bolam’s case that our own Supreme Court
has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others
(1995) 6 SCC 651 wherein Bolam’s case was also discussed has adopted this test as guidelines
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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.
(4) The test for determining medical negligence as laid down in
Bolam’s case, WLR at p. 586 holds good in its applicability in India.”
15. 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 -
i. 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.
ii. Hazard or the risk taken by the doctor should be of such a nature
that injury which resulted was most likely imminent.
16. Although, there is a distinction between the medical negligence of a criminal nature and
simplicitor medical negligence but consumer is entitled for compensation on account of both
kinds of negligence. The test for holding the medical professional liable for criminal negligence
should be such which should manifestly demonstrate utter act of rashness and negligence
whereas ordinarily the medical 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)).
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17. To ascertain the medical negligence, cumulative conclusions drawn from various
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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?
18. From the aforesaid conspectus of rival claims two things emerge; firstly, there is no
prescription by the respondent that there was a need for operation when the complainant
came to him in December, 1988 or even in December, 1990, i.e. after two years inspite of the
fact that the earlier doctor had advised for operation in the year December, 1988. Secondly
what emerges is that the complainant slept over for two years, i.e. till February, 1992 and
contacted the respondent, may be as a last resort, having faith in his competence and skill and
during this period he had incurred damage to his eye as he has not placed on record any
prescription of the treatment taken by him from any other doctor during this period.
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19. Thus, at the most, postponement of operation by the respondent from December, 1988
to December, 1990 is the allegation of deficiency in service. In this regard the counsel for the
respondent has referred to and relied upon the medical literature “Surgical Vs Medical
Management of Chronic Open-angle Glaucoma”, an American Journal of Opthalmology.
20. To the question whether surgical or medical therapy is very effective in preventing
Glaucoma, the answer was provided that, “When intra-ocular pressure is used as a therapeutic
end point, both filtration surgery and medical therapy appear to be equally effective in
maintaining long term visual function and a stable optic disk in chronic open angle glaucoma.
21. There is another view with regard to Open Angle Glaucoma, given in Parsons’ “Diseases
of the Eye” Dr. Stewart Duke Elder. According to his treatment the first phase is always medical
with operation as a last resort as the aim is to prevent IOP, which is intra-ocular pressure. Optic
nerves are very susceptible to pressure damage .Optic discs which are cut are particularly
susceptible, so that the angle of tension varies from patient to patient. It further prescribes that
management requires continuous supervision by an Ophthalmologist because it may involve
periodic tom meter and regular fundus photography and repeated mapping. All these are time
consuming tests which could be delegated to suitable trained staff.
22. However, there is no dispute that in case of glaucoma it is always to be remembered
that more eyes are lost by delay in undertaking surgeries than by surgical intervention. The
respondent was a highly qualified doctor in the field of eye diseases. He had conducted large
number of surgeries also. However, it is not understandable nor has been any reason given by
the respondent as to what prevented him from taking up surgery in the year 1988 when one of
the doctors had recommended surgery in that year itself. A reason given by the respondent is
that he wanted to control glaucoma by medicines as surgery is the last resort. When there is
such a difference of opinion between two skilled doctors and the medical literature prescribes
that surgery is necessary to arrest deterioration of glaucoma because intra-ocular pressure
varies on day to day basis, may be, the respondent was under the impression that he would be
able to control the disease but when the patient came to him in the year 1990 the disease of
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glaucoma had already deteriorated to an extent that it was not controllable. Even then the
respondent did not advise surgery. It was only in February, 1992 that he immediately asked for
surgery and conducted operation but by that time it was too late. So far as the operation is
concerned there was no error or any negligence. The only medical negligence was the delay in
his decision in conducting or not conducting the surgery.
23. However, the contributory negligence of the complainant that he did not visit the
respondent for almost two years between December, 1990 to February, 1992, and we do not
know where he had been hopping around and who were the doctors whom he consulted for
his disease and if he had consulted some of the doctors, then there is no material on record
whether they had also advised surgery or not. Therefore, the limited deficiency in service on the
part of the respondent is only in postponing the operation which was advised in the year 1988 till
1990.
24. However, the allegation of the complainant that after operating the left eye the
respondent operated the right eye after 40 days cannot be given inference of medical
negligence on the part of the respondent as it is the doctor who is well qualified to decide as to
at what time and which eye has to be operated upon. Unless and until some evidence appears
in respect of line of treatment being incorrect or not as per medical practice or unless and until
evidence is produced that while conducting the operation the doctor was highly negligent or
did not perform s per medical principles or practice in the field concerned, no doctor can be
held liable for medical negligence in conducting operation or following wrong line of
treatment.
25. Cases of medical negligence are very complex and wide. Patients have died due to the
administrative deficiency, say in providing oxygen cylinder or any such equipment well in time,
or not making arrangement of a Surgeon or Neuro-Surgeon or not taking the necessary
precautions at the time of conducting the main operation in order to obviate future
complications.
26. But in common parlance the medical negligence is the one which hits at the
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incompetence of a doctor, the decision of the doctor to undertake a case which was not
competent to take not having sufficient skill and knowledge in the field or having committed a
negligence which is demonstrative and pronounced on the face of it like leaving some foreign
objects like swab in the body etc. Therefore, every case has to be decided in the light of its
own facts and circumstances and no rule of thumb has ever been devised by any Court that
wherever a patient suffers adversely after the operation or during the course of treatment the
doctor has to be necessarily held guilty for medical negligence inspite of his being very
competent and skilful in the field he practices.
27. Inferences are not to be drawn while adjudicating the cases of medical negligence that
since a patient had died or has not been cured effectively as he expected because every
patient has a peculiar metabolism. That is why the basic criteria of medical negligence where
the doctor did a thing which he should not have done or he did not do what he was expected
to do or where he undertook a patient which he was not competent to undertake and where
after undertaking a patient for treatment he committed pronounced demonstrative
negligence, error of judgment or different line of treatment than the one prescribed by another
doctor, cannot form basis for holding a medical practitioner guilty of medical negligence.
28. Taking overall view of the matter and facts and having held the O.P liable for limited
negligence, we deem that a payment of compensation of Rs.50,000/- including cost of litigation
shall meet the ends of justice. The complaint is disposed of in above terms.
29. A copy of the order, as per statutory requirement be forwarded to the parties and
thereafter the file be consigned to record.
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(Justice J.D. Kapoor)
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(Rumnita Mittal)
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