JUDGMENT
S.K. Gupta
1. We have heard Mr. R. S. Sharma, learned Advocate for appellant, as well as Mr. Parmod Kohli, learned senior Advocate, for respondent 1 and Mr. Baldev Singh, learned counsel, for respondent 2, at length. This Civil 1st Miscellaneous appeal is directed against the order dated 21-12-1999 propounded by the Jammu and
Kashmir Consumers Protection Commission, hereinafter referred to as Commission. By virtue of the aforesaid order, the Commission has dismissed the complaint of the appellant for damages against the respondents on account of medical negligence and injuries/loss.
2. The facts relevant for the disposal of this appeal in nutshell are that complainant-Narinder Singh approached respondent 1, Dr. R. D. Sood, on 23-3-1998 with regard to ailment of his left eye. After detailed clinical examination, Advanced Immature Cataract (ISC) was diagnosed and the complainant was advised to undergo a surgical procedure. A cataract extraction in left eye with intraocular lens was performed on the complainant by respondent 1 on 29-3-1998. On 30-3-1998, bandage of complainant was removed and clinical examination was done. It was found that the left eye showed signs of inflammation as exudates had appeared in front of the lens. It is asserted by the complainant that this complication has occurred because of lack of post operative care and management provided by the respondent. It is also stated in the complaint that left eye of the complainant had to be removed by the Eye Specialist on account of infection developed in it, resulting in mental torture, besides huge expenditure of operation, hos-pitalisation in respect of which the compensation to the extent of Rs. 5.50 lacs including the cost of medicine has been claimed by the complainant occasioned due to operative negligence on the part of Dr. R. D. Sood, respondent 1.
3. The stand of respondent 1 before the Commission in the detailed affidavit filed is that, Cataract Extraction with intraocular lens surgery was conducted for the left eye of the complainant on 29-3-1998 after the complainant had undergone certain tests and his complete examinations, which included blood test, urine test, blood pressure and tension of the eye, were found to be within normal limits, besides ultrasonography. The complainant was also to undergo blood test to ascertain his blood sugar level a day before surgery. This was, however, done on 28-3-1998 and the blood sugar level was found within the safe permissible limits. It is further submitted by the respondent that complete surgical procedure was followed, Nothing abnormal was, however, detected after pre-operative tests
of the complainant. After comprehensive test
and clinical examination, cataract extraction in left eye with intraocular lens was per
formed under local anaesthesis. After all
possible operative and post-operative risks
involved were explained to the complainant
and secured his consent in writing, per
formed the surgery. The complainant discharged on 29-3-1998 after prescribing
medicines and noting the precautions to be
taken after the surgery. The respondent further claimed to be a qualified Eye Specialist
with 13 years experience to his credit in the
field of Ophthalmology. The bandage of the
complainant was removed on 30-3-1998 and
after clinical examination, respondent found
the complainant’s left eye extremely in good
condition. The respondent further stated to
have examined the complainant on 31-3-
1998, found making satisfactory recovery
and asked the complainant to continue with
the same medicine and report on 1-4-1998.
On 1-4-1998, complainant, when reported,
complained of having developed inflammation in his eye because he had rubbed and
washed it with water. Respondent found
exudates in front of lens and put him on
treatment. Respondent also examined complainant on 2nd April, 1998 and found satisfactory improvement. The patient was
again examined after two days on 4-4-1998
and by that inflammation cleared up. The
condition of the complainant was again reviewed by the respondent on 6-4-1998 and
found that exudative membrane had cleared
up considerably, but there was still a small
hypopyon in the eye. Respondent further
submitted that upon questioning the complainant, the latter revealed that he had
taken some alcohol after removal of band
age and on this the complaipant was advised to get his sugar level tested. It was on
9-4-1998, the complainant came with a re
port to his blood sugar test, which showed
210 mg%. This was on higher side. The patient, was advised to consult Dr. T. S. Didwal
(Physician) for control of his blood sugar.
The respondent, however, also stated that
on the instance of the patient, he referred
him to Dr. Rajbir Singh (of Dr. Sohan Singh
Hospital, Katra Sher Singh, Amritsar), a
Vitreo-Retinal Specialist, for a second opinion vide letter Annexure-C3.
4. The complainant, however, did not go to Dr. Rajbir Singh and instead approached Dr. Daljeet Singh, as admitted by the patient in his complaint. Dr. Daljeet Singh also performed two surgeries, but still not satisfied with the treatment from Dr. Daljeet Singh, the complainant proceeded to Chandigarh to consult Dr. Rajeev Mirchia. To support his claim, complainant filed his own affidavit and also appeared for the cross-examination in the witness-box, besides examined Dr. Dinesh Malhotra, Assistant Professor and further relied upon the record of Annexures C2, C3, C4 and” C5, whereas respondent 1-Dr. R. D. Sood, also filed an affidavit and appeared in the witness-box for cross-examination, apart from the documents R-1 and R-6 produced in the case. The Commission after scanning the material assembled on record and considering the rival contentions of the parties in entirety, in support and rebuttle of their respective claims and counter claims and hearing the counsel appearing for the respective parties and reached the following conclusion :
“From the aforesaid discussion we find that the complainant has failed to establish that the O.P. No. 1 was in any way remotely connected in the loss of left eye or it was because of lack of care and caution of the O.P. in the management and procedure conducted by him before, on and after conducting the operation on the left eye of the complainant and whereas on the other hand the OP has specifically established that he took all care and caution before operation during operation and after operation on the left eye of the complainant and left no stone unturned to see that the complainant regains his vision in the left eye and to avoid any complication. It is established law that to fasten a liability in torts to a Doctor it has to be established that the damage if any caused to the patient was because of negligence or lack of care or caution of Doctor in the treatment or in the operation as the case may be which already pointed out, has not been established by the complainant.”
5. It is well settled proposition of law that to support a complaint under Consumers Protection Act for compensation by a person who has suffered at the hands of a medical professional, it must be established that medical negligence was the direct cause of injury or loss suffered by the patient. In other words, unless the complainant establishes nexus between medical negligence and the injury or loss suffered, there can be
no case of medical negligence. This proposition is supported by number of authorities in the under noted cases. (Calcutta Medical Research Institute v. Bimlesh Chatterjee (1999) 1 CPJ 13 (NC); S. K. Lakhotia v. National Insurance Co. Ltd. (1994) 1 CPR 43 (Cal); Director, Himachal Institute of Engineering and Technology v. Anil Kumar Gupta (1994) 1 CPR 182 (HP); also refer Consumer Protection Council v. M. Sundaram (Dr.) (1998) 2 CPJ 3 (NC).
6. A surgeon or doctor can be sued only for medical negligence and not for error of judgment. Thus, in case of a surgery, it would be a judgment of the surgeon as to what method he should adopt having regard to the various relevant factors, such as, age of the patient, his health condition, results of pre-operative tests, showing the extent of diabetes, blood pressure, etc., his being allergic or sensitive to certain treatments, etc. It is, therefore, only medical negligence coupled with the injury caused by medical negligence, which would enable the aggrieved person to file a complaint. In the Instant case, the expert witness summoned and examined by the complainant as is own witness. Dr. Dinesh Malhotra (Ophthalmologist), who has stated emphatically and with unerring clarity after going through the record filed by the complainant that the complication was not because of the surgery conducted by respondent 1, but because of surgery while the complainant was under the treatment of Dr. Daljeet Singh at Amritsar. The ultrasound conducted by Dr. Daljeet Singh on 14-4-1998 shows that the eye was clear from inside. On 19th April, 1998, again ultrasound was done by Dr. Daljeet Singh, which showed that exudates appeared in the eye. The exudates, however, were found to have increased as revealed from the ultrasound conducted by the doctor and further increased on 27th April, 1998. This clearly shows that the condition of the eye had deteriorated from a clear vitreous to a vitreous full of exudates, while the patient remained under the treatment of Dr. Daljeet Singh, as revealed from ultrasound done during this period. Dr. Dinesh Malhotra, Ophthalmologist, produced as witness by the complainant has unambiguously stated that the record of the file does not show any operative negligence on the part of Dr. Sood. He also stated that consumption of alcohol also gives rise to blood sugar
level and alcohol is not permitted after operation. It is also in the evidence of Dr. Dinesh Malhotra that when a patient after surgery reports rise in blood sugar level, the standard procedure is to refer the patient to a physician for management. Dr. Mirchia of Chandigarh, who was in touch with him on telephone, never told the complication in the eye of the complainant was connected with the surgery performed by Dr. R. D. Sood. According to him, cleaning eye with dirty water or dirty cloth would give rise to inflammation. It is also further elicited from the statement of Dr. Dinesh Maihotra that the diabetes is feeble cause of inflammation and there is flimsy evidence to link diabetes with Inflammation, according to medical books. In view of the clear, cogent and positive evidence tendered by Dr. Dinesh Malhotra, Ophthalmologist, exami’ned by the complainant himself, it stands sufficiently proved that there was no medical negligence in the performance of the surgery on the left eye of the complainant, which resulted in the loss of left eye. Respondent 1 has taken all the precautions, pre and post operative care, after clinically examining the patient and going through the prescribed tests. The case of the complainant stands crumbled like pack of cards in the statement of his own witness. Dr. Dinesh Malhotra, an Eye Specialist, which has given a clean chit to respondent 1 and ruled out any possibility of medical negligence In the performance of surgery. We are clearly of the view that the finding recorded by the State Commission could not be faulted.
7. Having considered the aforesaid facts and circumstances in its cumulative, the inescapable conclusion reached is that the appeal, in our opinion, is without merit and is accordingly dismissed.