NCDRC in a recent case of post cataract follow up which was casual on the part of attending doctor and hospital. It was found that elements of medical negligence were present here. NCDRC approved total compensation of Rs.169000/- awarded by the SCDRC, Rajasthan holding hospital vicariously liable. NCDR.
NCDRC taken cognizance of discharge summary and attempt of manipulation of record and referred the SC judgment Laxman vs. Trimbak, 1969 while defining the duties of doctors. There is need for emphasizing among medical fraternity about the duties especially in post operative care and follow up seriously and contents of discharge summary to avoid such types of medical negligence cases.
Key Words: Medical Record, Casual Manner of Follow up, Discharge Card, Operative Notes, Cataract Surgery, Vicarious Liability, Dislocation of Implanted Lens
Background of the Case:
This order decided two revision petitions filed in a SCDRC, Rajasthan judgment. The facts are taken from Revision Petition No. 662 of 2015.
Facts of the Case:
On 25.2.2011, Dr. L. K. Nepalia, an Eye Surgeon (OP-1) performed cataract surgery on the left eye of the complainant, Smt. Kamla in St. Francis Hospital, Ajmer/OP-2 and discharged the complainant on next day.
On 28.2.2011, during follow-up, she complained of pain in her operated eye, the OP 1 prescribed medicines. Thereafter, till 18.4.2011, complainant visited OP-1 on several times, coming all the way from Pali. On each occasion, she complained of pain and loss of vision, in her operated eye.
The OP 1 prescribed routine medicines and assured the complainant that she would be normal, soon. The OP-1 told her not to come all the way from Pali, but consult Dr. Pradeep Maheshwari of District Pali itself, still there was no improvement.
At the insistence of complainant, the OP-1 referred her to Dr. Raj Kumar Sharma at Jaipur; but she consulted at ASG Hospital at Jodhpur, who told her that during Cataract surgery, the implanted lens had been detached/ dislocated.
She underwent another surgery at ASG hospital, where she incurred further expenses of Rs.33000/-.
Allegations and Claim for Compensation:
Therefore, alleging negligence on the part of OP, she filed a consumer complaint before District Forum, Ajmer. The District Forum dismissed the complaint.
Case before the SCDRC, Rajasthan:
The complainant filed first appeal before the State Commission, which was allowed, with the order that OP shall pay cost of Rs.33000/- incurred for second surgery, conducted at ASG Hospital plus cost of medicines, tests, other expenses totaling Rs.15000/-. The complainant is also entitled to receive compensation for medical negligence which is fixed at Rs.100000/- and also pay Rs.21000/- as cost of litigation.
Revision Petition before NCDRC:
Aggrieved by the order of State Commission, both the OPs filed two separate revision petitions.
At the admission stage, learned counsels for the petitioners were present and argued the matter. The learned counsel for the OP-2 hospital submitted that, OP 2 is a Missionary Charitable Hospital and OP 1 is an Eye Surgeon, retired as a Senior Professor from Jawaharlal Nehru Medical College, Ajmer, who attends the hospital. Thus, OP-1 is not in employment with OP-2.
The hospital provides only infrastructure for running OPD and other services, as required by the doctors. The operation was conducted by OP 1. Therefore, there was no negligence on the part of hospital. The patient never visited the hospital after 18.4.2011. The learned counsel for Dr. L. K. Nepalia argued that the State Commission came to the conclusion on imaginary basis and on the presumptions, OP-1 properly treated the patient, cataract operation was uneventful. During each follow-up visit, OP-1 examined the patient and advised medicines. There was no dislocation of the IOL. The dislocation was noted, only on 18.4.2011, upon which, he advised another operation but, the patient never turned-up to him and got operated somewhere else. Therefore, there was no negligence by the OP 1 during the treatment and advice. Learned counsel for the OP/Dr. L. K. Nepalia submitted that the patient’s eye was operated for the cataract. The patient was called for follow up. There was no abnormality. Hence, only medicines were prescribed.
On 18.4.2011, he noted the displacement of lens and accordingly advised the patient to consult Retina Surgeon at higher center. The bad condition of the eye may be due to rubbing of the eye.
Observations of the NCDRC:
We have perused the medical records available on file. To overcome this controversy, we have requisitioned the record form the District forum. It showed that the patient visited OP 1 on 28.2.2011, 3.3.2011, 7.3.2011, 17.3.2011, 31.3.2011 and 18.4.2011 about eight times. Every time, the doctor prescribed only eye drops and tablets.
On the file of revision petition we have noted some writing on the discharge summary below the name as under:
“Tension 12.2 both eye IOL left eye in vitreous
Vitrectomy, explanation with secondary iol under explained prognosis on 18/4/2011.”
Surprisingly, they said entry is conspicuously missing on the discharge summary record on District Forum’s file. Thus, it was a deliberate attempt of insertion.
Not a Free Service:
We have noted two payment receipts showing the hospitalization charges as Rs.5000/-, consultation and registration charges of Rs.100/- Therefore, certainly, it was not a free service.
Issue of Discharge Summary:
Secondly, the discharge summary did not show any clinical or treatment details, during follow-up. Nothing was mentioned about condition of eye. Therefore, under these circumstances, it is difficult to fathom what advice and mode of treatment OP-1 adopted during post cataract follow up.
Issue of Negligence and Vicarious Liability:
Therefore, we are of considered view that, OP-1 had just prescribed eye drops and medicines, without checking the patient’s complaints. This amounts to negligence, inaction and passivity of OP 1/doctor. Hence, OP 1 was negligent; consequently the hospital is vicariously liable. This view finds support from various judgments of Supreme Court.
Issue of Duty of Doctors:
Medical Negligence had been discussed in the English Courts which was followed and approved by the Indian Courts also. In Laxman vs. Trimbak, AIR 1969 SC 128 Hon’ble Supreme Court held thus above:
"The duties which a doctor owes to his patent are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patent owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must being to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law required: (cf. Halsbury's Laws of England, 3rd Ed. Vol. 26, p. 17)".
Summary and Conclusions;
In conclusion, the OP’s follow up treatment was just in a casual manner, the clinical notes did not mention about medicines or condition of patient. Also, there is clear cut insertion made by OP-1, on the discharge summary. Therefore, we hold the OP 1 and OP 2, i.e. doctor and Hospital, respectively liable for this Act. On the basis of forgoing discussion, we do not find any substance to interfere with the order of the State Commission. Hence, both the revision petitions are dismissed.
J.M. Malik, J. Dr. S.M. Kantikar, Member. Dr. L.K. Nepalia vs. Smt. Kamla & Anr., Revision Petition No. 686 of 2015 (Against the Order dated 12/12/2014 in Appeal No. 1472/2012 of the State Commission Rajasthan), Date of Judgment: 7th Aug 2015.
Laxman vs. Trimbak, AIR 1969 SC 128.
Halsbury's Laws of England, 3rd Ed. Vol. 26, p. 17