Wrong measurement of the lens power by Technician is error of judgment, not negligence. The narrow-escape for the Ophthalmologist - Adv. ROHiT ERANDE ©

 Wrong measurement of the lens power by Technician proved to be the narrow-escape for the Ophthalmologist. The wrong measurement of the lens power was the error of judgment on the part of the technician  and  not negligence, due to various responsible factors

 - Adv. ROHiT ERANDE ©

Case Details : NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

 REVISION PETITION NO. 99 OF 2019

(Against the Order dated 05/06/2018 in Appeal No. 438/2015 of the State Commission Maharashtra)

PRAJAKTA PRADEEP MULAY

Versus  

VINOD GOYAL, MUMBAI

Judgment link. 

https://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FRP%2F99%2F2019&dtofhearing=2023-12-13

BEFORE:  

  HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER

Order Dated : 13 December 2023

Facts in brief : The case goes back to 2008 !

1. The  complainant a retired doctor herself due to eye problems,  consulted the  OP /  doctor  at his Surya Hospital in Mulund and after diagnosing the cataract in the right eye, the OP advised cataract surgery.   The pathological test were carried out on 29.11.2008.  

2. The optometrist technician from Surya Hospital carried out the measurement of right eye lens power by performing A Scan of the complainant’s right eye.  He reported the power of the lens as + 24 Diopter.  The cataract surgery by Small Incison Cataract Surgery ( SICS)  technique of the complainant’s eye was performed by the OP in Surya Hospital by using IOL ( Intra Ocular Lens) of + 24 diopter power on 09th December 2008 and on the same day she was discharged. In the postoperative period, the complainant was found to have refractive error which was measured as for the distant vision  Sph-5 and for near vision Sph-2.5.  The OP advised the complainant using progressive lens spectacle for the correction of refractive error. 

3.  After finding that her vision was still not improved, the complainant consulted other ophthalmic surgeon in Mumbai for second opinion that included Dr. Nishikant Borse, Dr. Kumar, Dr. Deepak Bhatt, Dr. Bijal Mehta and Dr. Kulin for A Scan,. As per fresh calculation of the lens power as + 19 Diopter, Dr. Nishikant Borse carried out second surgery of replacement of previous lens with the lens of + 19 diopter at Wockhardit Hospital, Mumbai on 17th February 2009.  Later on Dr. Bose also carried out corrective laser surgery after 2 years i.e. on 25th February, 2011.  

4. Being aggrieved of the said act of the OP, the Complainant filed Complaint before the District Forum, which was dismissed followed by dismissal of an Appeal by state commission and thus she approached the National Commission mainly on following grounds :

a. That the Respondent Doctor acted negligently despite following admitted and factual position and eye measurement done by respondent with + 24 Dioptre was significantly bigger than the latter eye measurement of Petitioner done by other doctors.

 b. The Doctor had not measured both the eyes of the petitioner and only measured the right eye which was to be operated at that time and has violated the standard practice protocol.

 c. The OP has operated the complainant by SICS technique but charged fees of operation of Phacoemulsification technique.

 d. The respondent has implanted the said lens in the sulcus and not in the bag of petitioner’s right eye and without re-confirming the measurement of eye, inserted a bigger lens in sulcus of complainant’s right eye.

 e. The fact that second surgery required to be done by Dr. Nishikant Borse, it suggests that first surgery done by respondent was wrong.

 f. The State Commission did not consider the medical version brought  to the notice of the State Commission.

g. The Respondent has not done the surgery by Phacoemulsification technique and has resorted to SICS technique without intimating to the complainant.

Defense :

a. It was argued on behalf of  the Respondent that  residual refractive error is an inherent risk factor that can take place and is a known fact in cataract operation. 

b. Further, method of performing lens extraction in any cataract surgery is the operating surgeon’s decision based on various pre operative and intra operative factors and at the time when surgical procedure is being conducted, on the spot decisions have to be taken. c. respondent had never told the petitioner that only Phacoemulsification method would be used and which method is to be used is decided by the surgeon on the table.  

d. the Respondent has followed the SOP and that it is the right of a Doctor to select one method of treatment amongst the available options.  two.

e. Petitioner falsely averted that refraction error was permanent, however, same can be corrected.   Counsel for the respondent relied upon various judgments   of Hon’ble Supreme Court / National Commission.

Held :

1. The Commission at the outset observed that  there are concurrent findings of both the Fora below that there was no deficiency in service and medical negligence on the part of OP / respondent herein in conducting cataract operation.  Extract of relevant paras of order of State Commission is reproduced below:

“22. We are of the opinion that the correctness of the treatment of the complainant in respect of the calculation of the lens power, method of the surgical treatment of cataract, location of the placement of the intraocular lens is the subject matter of the experts.  The court need not decide the correctness of the treatment when different schools of thought advise different lines of treatment.  And hence based on the pleadings, evidence placed on record and the submissions of both parties, we find that there is no deficiency of service and medical negligence by the opposite party in the treatment of the complainant.

In the instant case, the appellant complainant herself is senior doctor whose right eye cataract surgery was performed by the respondent. In our view, the ophthalmic technician measured the power of lens with the help of machine A scan.  There was an error of calculating the power of the lens on the part of the technician and hence the lens of power + 24 diopter was implanted in the right eye.  Further the respondent operating surgeon operated by SICS technique which is one of the accepted method of cataract surgery In the post operative period, except for high power lens, there was no dreadful complication that resulted in loss of vision.  

 Hence there was  no damage suffered by the complainant from the cataract surgery which is an essential element of providing medical negligence.  The complainant was stimulated by the comments of the optician who made glasses for her.  It is admitted fact that based on her interaction with the operating surgeon, the cost of the treatment – cataract surgery, was refunded to her, which she accepted as full and final settlement.

 24.  We are of the opinion that the wrong measurement of the lens power was the error of judgment on the part of the technician, due to various responsible factors……..” 

 3. The commission held that in the instant case, the maxim res ipsa loquitur is not applicable since, it was the error of judgment and  not negligence.

4.       District Forum has also considered the case at length and came to conclusion that evidence adduced on record by the Complainant is not sufficient to hold opponent guilty of deficiency in service or medical negligence.  Extract of relevant paras of the order of the District Forum is reproduced below:

“17) Though much was commented upon the evidence of Dr. Borse since Dr. Borse who has carried out second surgery of removal of IOL and implantation of corrected dioptre IOL has given his candid opinion. Therefore we are of the view that though the opponent has certainly committee an error while implanting the IOL of +24 dioptre. Residual refractory error occurred to her right eye was not an outcome or negligence on the part of opponent. On the contrary the opponent has performed cataract surgery of the complainant by observing required protocol of medical science.

18)  It is true that opponent has used Small Incision Cataract Surgery System (SIC) instead of phacoemulsification technique. However on that alone count the opponent cannot be held negligent for performing the surgery of the complainant because it is the total discretion of the performing doctor to adopt technique either of the way because after all he is the best judge of the situation. Moreover, out of these two techniques what technique should be applied depend upon case to case from eye ball to eye ball and therefore operating doctor usually decide the final method on the table and therefore if the opponent has obtained for SICS method instead of phacoemulsification technique he cannot be branded as a negligent.

19)      Lastly, it is also seen from record that when the complainant has shown her dissatisfaction with the surgery' carried out by the opponent when she has demanded the surgery charges the opponent has refund her Rs.30,000/- The complainant has accepted the same towards final payment and has further contended that no issue pending now. This commitment of the complainant goes unsaying that she has accepted Rs.30,000/- towards full and final settlement. Because of the said act of the complainant her further claim of compensation is not acceptable.

 20)      Therefore from the above discussion we have no hesitation to  conclude that while taking the measurement intra ocular lens though there was some mistake, due to the said mistake no further damage of the complainant has occurred. On the contrary. Dr. Nishikant carried out subsequent surgery on the complainant even thereafter the vision of the complainant was not clear therefore complainant was required to undergo laser surgery. Therefore, the residual refractive error found with the complainant after the surgery cannot be said as outcome of cataract surgery of the complainant carried out by the opponent. Therefore we are of the opinion that the evidence adduce on record by the complainant  is not sufficient to hold the opponent guilty for deficiency of service or medical negligence. Therefore we decide point No. 1 & 2 in negative and reject the complaint. Hence order.”

 5.    After referring to various judgments of hon'ble Apex Court, the NCDRC observed that in this case, no doubt there was wrong measurement of the lens power, but this power of lens was measured by the technician and not the OP doctor who performed the surgery and implanted lens of the wrong  power.  But the Complainant did not implead the technician as one of the OP in the Complaint before the District Forum. Only doctor was impleaded as OP.  In our opinion, the OP doctor cannot be held responsible for the wrong measurement of lens power by the technician.

Really a narrow escape for the the Doctor. Thanks to the Technician for measuring the power of lens and thanks to the Complainant for not impleading him as a party. But this case, though of 2008 and by this time the techniques could have been substantially changed, nevertheless taking precaution is a must. In this case the complainant herself is a Doctor and hence perhaps she fought upto NCDRC and might go the last resort -Hon'ble Apex Court. 

Thanks and regards,

Adv. ROHiT ERANDE ©