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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member
Appollo Hospitals and Anr. —Appellants
versus
Bhagwan L. Moorjani and Ors. —Respondents
First Appeal Nos.168 and 212 of 2014
Decided on 13.2.2018
Held: Similarly in the case of Kusum Sharma & Ors vs Batra Hospital & Med. Research (2010) 3 SCC 480, Hon’ble SC observed that:
50. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks.
51. In Roe and Woolley v. Minister of Health (1954) 2 QB 66, Lord Justice Denning said: ‘It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way.”
52. It was also observed in the same case that “We must not look at the 1947 accident with 1954 spectacles:”. “But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.
It is true that due to the extensive fungal growth, the operation was inevitable and thus OP-2 had performed FESS in the best interest of patient. The medical record, pre and post-operative CT scan reports; clearly establish that, there was neither injury to the Optic nerve nor the Medial rectus muscle during FESS. In addition, the patient was suffering from Diabetes, Hypertension for many years, which might be a contributory factor to loss of vision. However, in my view, the OP-2 is liable to the extent of failure to take opinion or consultation from the Ophthalmologist before the FESS procedure. Moreover, OP-2 had not informed the patient about ophthalmic complications and performed FESS; thus as such there was no informed consent. It was the therapeutic misadventure only.
On the basis of discussion above, in my view, Rs. 3 lakh compensation awarded by State Commission is just and proper in the instant case. There is no justification for enhancement of compensation. Therefore, both the appeals are dismissed; however, there shall be no order as to costs. (Paras 16 to 18)
Result: Appeal dismissed.
Dr. S.M. Kantikar, Presiding Member—The above said cross appeals have been filed by the Complainant and the Opposite parties(OP-1 and 2) under Section 19 of the Consumer Protection Act, 1986 against the impugned order dated 27.12.2013 passed in C.C. No. 7 of 2012 by A. P. State Consumer Disputes Redressal Commission, Hyderabad (in short, ‘the State Commission’) whereby the State Commission allowed the complaint of the complainant and directed the OP 1 and 2 to pay a sum of Rs. 3 lakhs together with cost of Rs.5,000/-. The complainant filed an Appeal No. 212 of 2014 for the enhancement of compensation whereas OPs have filed the appeal No.168 of 2014 for setting aside the order passed by the State Commission and dismissal of the complaint.
2. For the convenience, the parties are placed to the respective positions as in the original complaint. The brief facts are drawn from FA No. 212 of 2014. The complainant, Bhagwan L. Moorjani (herein after referred as “the patient”) was suffering from nasal congestion, sleep disturbance during night and watering of eyes. In early 2011, the patient consulted OP 2/Dr. E.C. Vinay Kumar at Apollo Hospital, Hyderabad/OP 1. Initial course of broad-spectrum antibiotics was given and OP-2 reviewed the condition of the patient on 2.3.2011, and CT Scan was performed, it was reported as “the extensive destruction of lamina papyracea and that the said lesion was ‘eroding’ through the right medial wall and is abutting and displacing medial rectus.”. The patient was finally diagnosed as ‘Sinonasal Polyposis’ with ‘intra orbital extension’. OP-2 advised the patient for ‘Functional-Endoscopic-Sinus-Surgery (FESS)’ to remove the polyposis. OP-2 had assured that it was common and routine surgical procedure, which usually lasts for 2 to 3 hours. He did not mention anything about the Ocular complications. The patient got admitted on 7.3.2011 and the FESS was performed around 11.20 a.m. on 8.3.2011. After the operation, patient’s wife was informed that, it was fungal infection and surgery was satisfactory.
3. At about 2.00 p.m. the complainant’s wife noticed that, the patient’s right eye was rolled on to one side and he was complaining about loss of vision in his right eye. On inquiry with the doctors, it was informed that, it might be due to ‘tight packing in his nasal cavity which could cause pressure on optic nerve and a temporary loss of vision. Again, at about 4.30 p.m. the patient was taken into the operation theatre for re-exploration. The re-exploration did not reveal any significant findings like hematoma or active bleeding at the site of operation. During the night around 8.00 p.m., OP-2 with other doctors and the Ophthalmologist informed the patient’s wife that, the patient suffered very rare complication of sinus surgery, which has caused loss of vision in the right eye. It could be due to ‘apparent defect secondary to CRAO (Central Retinal Artery Occlusion) ?orbital edema, ?optic neuropathy”. Therefore, OP-2 prescribed high doses of steroid to reduce the edema and for revival of optic nerve. On the 4th day i.e. on 11.3.2011, at 9.30 p.m. the patient was discharged without giving any details of treatment procedure. On 5.4.2011, the patient consulted Dr. Santosh G. Honavar at LV Prasad Eye Institute, Hyderabad who diagnosed it as “diffuse sub-conjunctival hemorrhage in the inferior aspect” and “medial rectus palsy and optic neuropathy, following paranasal surgery for allergic fungal sinusitis”. Thereafter, on 12.4.2011, patient sought another opinion from Maa E.N.T. Hospital, Hyderabad, the doctors there after examination informed the complainant that, he would have undergone CT guided debridement surgery, when the fungal infection was close to optic nerve, it could have been avoided paralysis of medial rectus.
4. Therefore, it was alleged that due to negligence of OP-2, complainant had suffered damage to his left eye. The OP-2 and hospital have failed in their duty, had it been informed to the com
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