Only Conclusive Evidence and not sympathy (towards patient) can be the basis for awarding Damages : Adv. ROHiT ERANDE. ©

Sympathy (towards patient) cannot prevail upon the conclusive evidence to award compensation in Medical Negligence Cases against the Doctors .

Adv. ROHiT ERANDE. ©

The issue involved is post-cataract alleged negligence caused loss of vision in the right eye of the Complainant.

Case Details :

RAMA SANKAR JAISWAL V/s. VASAN EYE CARE HOSPITAL & 2 ORS, West Bengal. REVISION PETITION NO. 2230 OF 2017.

Judgment Link :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FRP%2F2095%2F2017&dtofhearing=2022-06-10

BEFORE:  

  HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER

  HON'BLE MR. BINOY KUMAR,MEMBER

ORDER Dated : 10 Jun 2022

Facts in Short :

1. The Complainant approached District Forum against the alleged medical negligence in Cataract operation that caused permanent loss of vision in his right eye and the District forum allowed the compliant with following observations:

“Due to gross negligence committed by the OPs, the complainant lost vision of his right eye and for which the OP No-1 is to compensate the complainant by way of compensation. The third operation was at all not necessary and for that reason complainant lost the vision of his right eye. So, we are of the view that it is due to negligence of the OP No.-1. the Complainant has suffered mental and pecuniary loss. Complainant is a 70 years old person and OP No.-1 is humanitarian ground should pay Rs.50,000/- as compensation for loss of his eye. The finding of Ld. Forum concerned as it appears from the body of the judgment was that the OPs/Respondents No. 2 & 3 being the agent of the OP No. 1 perform the operational work and for that reason the OP No.1 was directed to pay a sum of Rs. 50,000/- as compensation for the loss of his eye”.

2.       However dissatisfied with the amount of compensation, the Complainant appealed before the State Commission for enhancement of the compensation. The State Commission partly allowed the appeal and modified the order of the District Forum and directed the OPs to pay Rs. 1 lakh each (Rs. 50,000/- as refund of expenditure and Rs. 50,000/- towards compensation) by the OP-1 and Rs. 1 lakh each by the OPs-2 & 3 for their medical negligence in treating the patient to be paid within one month from the date of the order, failing which the said amount would carry damages to the tune of Rs. 300/- per day payable to the appellant till its realisation.

3.       Being aggrieved, the Complainant for more enhancement and the OPs-2 & 3 against the compensation, have filed the instant two Revision Petitions.

Held :

1. The Complainant's allegations that the faulty treatment costed him his right eye vision, were denied by the  Opponent Hospital and Doctors and they relied on the  the details of the treatment and the prescriptions.  

2.   The Patient's vision in right eye was 6/36 N18(P).  The patient was explained in detail about the visual outcome and prognosis after the surgery because the patient also had corneal ailment.  The right eye cataract extraction was done on 22.11.2012 by Manual phaco/SICS with Acrysof IQ Lens under Viscoat to protect the cornea.  The surgery was uneventful.  During follow up checkup it was noted right eye +3.25 N10 and left eye +3.00 N6.  

3.     On 17.12.2012, the patient was referred to Dr. Prosenjit Mondal, OP-3 for the complaints of floaters in the right eye and examination of retina. On examination by OP-3 noted that the Anterior Segment of Right Eye showing good Pseudo-phakia with well-placed lOL in the bag/No reaction in Anterior and Posterior Segment. The Left Eye showed immature Cataract. Fundus Examination of Right Eye revealed Retinal Detachment & Pale Optic Disc, accordingly, surgery under Guarded Visual Prognosis was advised. On 21.12.2012, the patient underwent Right Eye Sclera buckle with Pars Plana-Vitrectomy with Perfluoro-cabon liquid injection with Endo-laser with silicon oil.  The Retina well attached with silicon oil filled eye. Post-operative period was uneventful. On 01.03.2013 patient underwent right eye silicon removal.

4. The patient was further referred to the senior vitireo retinal surgeon Dr. Tamal Kanti Roy Sarkar who, on 21.03.2013, performed Right Eye IOL Explantation with Endo-laser with silicon oil injection. On 10.06.2014 patient's best corrected visual acuity was 6/12 P in Right eye and 6/12 in left eye. As there was corneal pathology, and the patient was advised to use Contact Lens, but the patient did not follow the advice and insisted for implantation of Secondary Lens which was detrimental to the patient in view of corneal ailment with history of previous retinal detachment. Thereafter, on 04.07.2013, the patient underwent right eye silicon oil removal with Endo-laser.

5    On the above factual background, it was held that  the retinal detachment was properly treated by the OP-3 and further by senior vitireo retinal surgeon Dr. Tamal Kanti Roy Sarkar. It was observed that "We do not find deficiency or negligence on the part of the OP-3. The negligence cannot be attributed to him so long as he performed his duties to the best of his ability". The commission relied upon the  the observations made by Hon’ble Supreme Court in the celebrated case of Achutrao Haribhao Khodwa & Others V State of Maharashtra & others[(1996) 2 SCC 634], as:

“in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.”

4. It was lastly held that the above discussion  leads to the conclusion that , both the fora below erred to hold the OPs liable for medical negligence. It was an error that the District Forum awarded compensation of Rs. 50,000/- on humanitarian ground, whereas the State Commission enhanced it to Rs. 1 lakh each. 

In our view, both the fora have taken sympathetic view and awarded the compensation, however sympathy cannot substitute for conclusive evidence of medical negligence. In the instant case, the medical negligence could not be conclusively attributed against the hospital and the treating doctors and thus dismissed both the lower petitions. 

I think this judgment has underlined a very important point. In many cases it has been seen that the Lower Foras have awarded the compensation on humanitarian approach, may be because CPA is the Social Legislation. However, the mere sympathy cannot be the reason to decide any such cases, the evidence is of more importance. no doubt, the poor patient lost his eye eight, but the risk is always present behind the curtains. What we have to se whether the Doctors followed the SOPs and used their Skill or not. 

Thanks and Regards

Adv. ROHiT ERANDE

PUNE. ©