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2012(3) CPR 256 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.C. Jain, Presiding Member and Anupam Dasgupta, Member
Director Jawaharlal Institute for Postgraduate Medical Education and Research (JIPMER) Puducherry & Anr. —Appellants
versus
S. Varrery Srinivas —Respondent
First Appeal No. 120 of 2003
(From the order dated 30.12.2002 of the Puducherry State Consumer Disputes Redressal Commission, Puducherry in Complaint Case No. 1 of 1999)
Decided on 27.7.2012
Counsel for the Parties:
For the Appellants:Mr. Rajat Gaur, Advocate.
For the Respondent:Mr. K. P. Sunder Rao, Advocate with Ms. A. Subhashini, Advocate.
IMPORTANT POINT
Doctors must follow standard protocol while conducting surgery.
Headnote:Consumer Protection Act, 1986—Sections 2(1)(g), 2(1)(o), 17, 19 and 21—Medical services—Medical negligence—Negligence in conducting cataract surgery which led to complete loss of vision—Compensation of Rs.5 Lakhs and cost of Rs.15,000/- awarded by State Commission—Appellants failed to notice glaring omissions and departures in treatment given to respondent vis a vis standard protocol in this regard and gave a clean chit to appellant—Deficiency in service/medical negligence is all the more inexplicable because Doctor in-charge who conducted surgery and guided entire treatment was no average practitioner of “Bolam” variety but a specialist of high order and herself author of a scholarly review/research article on endophthalmitis which made specific professional recommendations on its treatment that she failed to follow—Appeal dismissed with cost of Rs. 25,000. (Paras 12 to 15)
Result: Appeal dismissed with cost.
Anupam Dasgupta, Member—(i) This appeal is against the order dated 30.12.2002 of the Puducherry State Consumer Disputes Redressal Commission, Puducherry (in short, ‘the State Commission’) in consumer case no. 1 of 1999. By this order, the State Commission held the appellants/opposite parties (OPs) guilty of deficiency in service/medical negligence in conducting the cataract surgery of the right eye of the respondent/complainant, which led to complete loss of vision in that eye due to endophthalmitis.
(ii) The State Commission based its findings mainly on the ground that the consent letter of the respondent/complainant/patient for undergoing the surgery had not been produced by the appellant/OP and instead the consent letter of an altogether different patient was included in the case record relating to the respondent/complainant. The State Commission treated this as an instance of mala fide intention on the part of the appellants/OPs. The State Commission also observed that even after specifically directing them to do so the OPs failed to produce the consent letter signed by the complainant. Further, the State Commission found that the case record did not show the time of commencement of the process of anaesthesia and the actual surgery, which was a material omission. Further, the case record appeared to have entries which were “fresh on some pages” whereas the other entries on other pages were not so. This, according to the State Commission, suggested insertion of entries in the case record after filing of the complaint.
(iii) On these considerations, the State Commission finally awarded a compensation of Rs.5 lakh and cost of Rs.15,000/- to be paid jointly and severally by the OPs within sixty days of the date of the receipt of the order, failing which interest @ 12% per annum would also be payable from the date of expiry of sixty days till the date of actual payment.
2. The respondent, who was the complainant before the State Commission, had suffered a blunt injury in his right eye some time in 1982. In June 1997 (when he was about 29 years), he went to Sankara Nethralaya, Chennai because he felt that the distance vision in his right eye had diminished. In a report dated 21.06.1997, a Doctor at the Nethralaya recorded his case summary as under:
“On examination, his best corrected visual acuity was 3/60; N 36 in the right eye and 6/6; N6 in the left eye. Extraocular movements were full. Slit lamp examination of the anterior segment revealed iridodialysis in the inferior temporal quadrant. Through which the margin of the lens with intact zonules could be made out. There was no evidence of phacodonesis. Lens showed cataractous changes. Rest of the anterior segment was normal. Left eye was normal. Intraocular pressure by applanation tonometry was 16mm of Hg in both the eyes. Gonioscopy revealed angle recession between 9 to 12’ 0 clock and iridodialysis between 7 to 9’ 0 clock. Rest of the angle was opened. Fundus examination revealed healthy discus in both the eyes. Rest of the fundus was normal. The patient can undergo cataract surgery in the right eye, whenever he desires to be done at locally. In view of the angle recession, his intraocular pressure need to be checked periodically.
Dr. A. V. Sathi Devi”
3(i) Thereafter the complainant got admitted to JIPMER Hospital, Puducherry for cataract surgery which was conducted after several tests and check-ups on 10.07.1997 by Dr. (Prof) Renuka Srinivasan. He alleged that when he was discharged from the JIPMER Hospital, he had no vision in his right eye and when he complained about this the Doctor at the Hospital periodically checked him and ultimately issued a certificate dated 12.11.1997 stating that the complainant had developed endophthalmitis in his right eye after the cataract surgery after which his visual acuity in that right eye was ‘PL Negative’ and the eye had shrunk and collapsed (Phthisis).
(ii) In between, on 09.08.1997, the complainant had gone again to Sankara Nethra
