C p a act
raj
(Querist) 03 December 2015
This query is : Resolved
Respected learned counsel,
I am a doctor working in a teaching institute.I did an eye surgery few years back and the patient had a problem in his cornea afterwards.We admitted and treated him when he approached us.But his condition was not improved so we sought opinion of another specialist.He ruled out surgical complication and advised him to go to a cornea specialist.We referred him to a higher institute with a referral letter.But the patient did not visited the specialist.He neither came to us for further followup.After two years of this incident,he filed a CPA act case for claiming compensation,stating he lost the eye due to our negligence.We submitted the entire case sheet which includes the protocol of the surgery and treatment details to the honourable district forum.The district forum awarded the compensation without expert opinion.We challenged the order in the state forum.The state forum reduced the amount of compensation.Further we approached Honourable national forum to prove our duty of care and responsibility on the part of the patient.The Honorable national forum too supported the state forum verdict without expert opinion .We paid expenses to the complainant to attend before the national forum.But the complainant did not attended before the forum in spite of serving Dasti notices to him several times.The honorable national forum made the complainant as ex parte and delivered the verdict quoting bolam's test.What should we do now.Please advise.
Advocate Kappil Cchandna
(Expert) 03 December 2015
Sir,,
Please share the orders to get the correct opinion.
Warn Regards
Kapil Chandna Advocate
raj
(Querist) 04 December 2015
ORDER
DR. S. M. KANTIKAR, MEMBER
1.The complainant, Mr. Tammisetti Venkata Narayana (herein referred as patient) was operated for
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bilateral cataract at Dr. Pinnamaneni Sidhartha Institute of Medical Sciences & Research Foundation by
Dr. Rajendra Prasad OP 1 on 10Â09Â2008. He was discharged on 11Â09Â2008 without proper care. There was watering in the eye and pain in the right eye. On 13Â09Â2008, the patient was referred to Dr. G. Sudheer of Pradeep Eye Hospital, Machavaram who opined that the patient lost his vision of the right eye due to wrong surgery. The OPs 1& 2 referred him to LV. Prasad Eye Hospital at Hyderabad but, the patient could not go there due to financial crisis. Therefore, he consulted Dr. Ravella Rajakumar, Vijaywada and Dr. G. Sambasiva Rao, Nandigama, both of them opined that he lost vision in the right eye due to negligent surgery performed by OP 1. Alleging negligence on the part of OPÂ1, the complainant filed a complaint before District Forum, Vijayawada on 24Â06Â2010.
2. The District Forum on 4Â5Â2012, allowed the complaint on the premise that the damage to cornea in the right eye of the first respondent was caused due to surgical trauma and it occurred at the time of cataract extraction done by the OPÂ1. The District Forum directed the OPÂ1 Dr.Rajendra Prasad and the OPÂ3Âinstitute to pay jointly Rs.2 lacs with interest @ 9% per annum plus Rs.2000/Â towards the cost. The complaint against OPÂ2 Dr. P. Ravi Kiran was dismissed.
3.Aggrieved by the order of the District Forum, the OPÂ1 filed the First Appeal No.444/2012 before the State Commission, Hyderabad on 14Â6Â2012. The State Commission reduced the quantum of compensation to Rs.1 lac with 9% interest per annum plus Rs.2000/Â as cost.
4.Against the order of State Commission, the OPÂ1 and OPÂ2 filed this revision petition on 28Â2Â
2014.
5.We have heard the learned counsel for petitioners. Respondent/Complainant was absent despite service, therefore proceeded against exÂparte. The counsel for OPs/petitioners submitted that, the patient was not a consumer of OP. The cataract surgery was at free of cost in the camp under National program for blindness control. The charges paid to the OPs by the Government are for reimbursing the expenses. The OPÂ1 conducted cataract surgery, took due care during postÂoperative stage. At the time of discharge the patient did not complain any problem, eye drops were issued free of cost.
6. The Patient approached OPÂ1again on the next day i.e. 12Â09Â2008 complaining pain, blurred vision and watering from the operated right eye and he was again admitted in the OPÂ3Âhospital., but the eye condition did not improve at expected level. Therefore, on 13Â09Â2008, the OPÂ1 referred him to Dr. Sudheer, the Vitreo Retinal Surgeon of Pradeena Eye Hospital. Dr. Sudheer opined that there was no postÂoperative inflammation or infection. He advised to investigate patient on lines of corneal haziness /edema. However, the patient did not turn up to visit OP. The patient was further advised to go L.V. Prasad Eye Institute at Hyderabad for treatment of corneal haziness, but he neither visited the said institute nor approached OPÂ3.
7.We gave our thoughtful consideration after going through the evidence on record, medical literature on post cataract corneal edema/haziness. It is pertinent to note that Exhibit A4 revealed hazy appearance was at the centre of eye. It should be due to damage to the corneal endothelium at the centre of eye. There is much possibility that injury or the damage to cornea must have occurred only due to surgical trauma and that it had happened only at the time of cataract extraction done by OPÂ1. In our view, it was either due to failure of OPÂ1 in not adopting reasonable skill or failure in the duty of care. As per version of OPÂ1, that the OPÂ2 Dr. Ravi Kiran was not involved in the entire course of treatment, hence no liability upon OPÂ2 could be saddled. The OPÂ3 being hospital is vicariously liable.
8.The Hon’ble Supreme Court and this Commission has defined the elements of medical negligence. Also, putting reliance upon the Bolam’s test, we are of considered view that the OPÂ1 failed in his duty of care, it was not a standard of practice. In Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu
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Godbole and Anr. (1969)1 SCR 206, observed that,
A person who holds himself out ready to give medical advice and treatment impliedly holds forth that he is possessed of skill and knowledge for the Purpose. Such a person when consulted by a patient, owes certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties will Âsupport an action for negligence by the patient."
9. On the basis of discussion above, we do not find any discrepancy in the well reasoned order of State Commission which held OPÂ1 and 3 liable for the negligence. Accordingly, we dismiss this revision petition.
......................J
J.M. MALIK PRESIDING MEMBER
......................
DR. S.M. KANTIKAR MEMBER
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raj
(Querist) 04 December 2015
dear learned counsel,
In the above order i want to bring to your kind notice that the referral specialist and the two doctors who has seen the patient did not mention anywhere that he lost the vision due to wrong surgery.We are surprised how the honorable national forum mentioned in the above order.
Kumar Doab
(Expert) 04 December 2015
All medical cases don't need 'Expert Opinion'.
The standard of care, when assessing the practice as adopted is judged in the light of the knowledge available at the time (of the incident), and not at the date of trial.
Bolam test is the accepted test in India.
raj
(Querist) 04 December 2015
is the honorable forum order be considered as RES JUDICATA?Please explain sir.
raj
(Querist) 04 December 2015
Respected learned counsel,
The surgeon concerned is having 20 years of surgical experience and is a medical teacher too.
Kumar Doab
(Expert) 04 December 2015
What do you expect to gain from it!
The result of negligence for a doctor that has just been granted license and one that got 20years back and one that teaches also....................may not be different.
The onus and responsibility to not to cause damage by negligence on a practitioner that has years of hands on experience and teaches to others also, may be more!
How are you related with the query!
raj
(Querist) 05 December 2015
Respected kumarji,
Thank you for your kind attention.
Iam the surgeon in this case.I too agree with u regarding experience.But what irked the medical personnel is why not the honorable forums consider the merits of the matter.In this case the forum opined that we discharged the patient without proper care when we recorded the standard protocol of the discharge in our case sheet.The definition of medical negligence is not being applied.More over it is the cornea of the patient diseased which might be due to several causes as per the standard literature .Why cant the forum take the advice or opinion of another expert to prove the damage is caused by the surgical procedure,which is undisputed, if it is confirmed by a professional expert.
ADV-JEEVAN PATIL, MUMBAI
(Expert) 05 December 2015
U need not bothered since passed ex parte order unless dismissed by orginal complainant
Kumar Doab
(Expert) 05 December 2015
The patient appeared with complaint a day after the operation.Two doctors have already opined on negligence and it has been included in the narrative by the NCDRC.
The order of state commission has been held.
raj
(Querist) 05 December 2015
Thank you Jeevan Patilji for your valuable reply.I also thank Kumarji.Any further explanation by the learned counsel.
Kumar Doab
(Expert) 05 December 2015
In a similar case apex court: Supreme Court of India, held the order passed by DCDRF.
IN your case too, award by DCDRF is higher than State Commission.
raj
(Querist) 06 December 2015
Thank you kumar doab ji.
Kumar Doab
(Expert) 06 December 2015
You are welcome!
It is the revision petition that has been dismissed.
It is duly recorded that patient could not come due to money problem.
You may comply with order within stipulated time.
The patient may decided to agitate for contempt of court.
raj
(Querist) 06 December 2015
Respected kumarji,
We paid the expenses to the complainant to attend before the forum as directed by the honorable national forum.But he didn't attended.We also served personally dasti notices to him twice and got signed,submitted to the honorable forum.
Thank you sir for your concern.
Kumar Doab
(Expert) 07 December 2015
You are welcome again!
You have already completed your transactions.
Apparently nothing is left.
Until or unless there is some contest in future.
raj
(Querist) 07 December 2015
Thank you once again sir.
I also thank Goyalji.
