Recently, the NCDRC ruled that it is not possible to conclusively attribute non-adherence to the duty of care and standard of practice on the part of the treating doctor and the hospital.
Justice R.K. Aggarwal and S.M. Kantikar was working on the complaint and filed a consumer complaint praying for Rs. 8,46,79,000/- as compensation from the opposite parties (doctor and hospital).
In this case, the complainant is a senior scientist at Lawrence Livermore National Laboratory, California, USA. In India, he suffered ‘Rhegmatogenous Retinal Detachment’ causing blurred vision with dark peripheral vision in the left eye. Therefore, the complainant approached the opposite party no.1 – Dr. Sourav Sinha, who advised surgery for retinal detachment.
The surgery was performed by Opposite Party No. 1 and upon completion of the surgery, Opposite Party No. 1 injected a perfluoropropane (C3F8) gas bubble into the left eye to press the retina firmly against the wall of the eye.
The opposite party No.1 gave the prescription as ‘fit to fly’ knowing very well about the complications of traveling by air after about 2 weeks of surgery. Accordingly, the complainant took a flight to US San Francisco via Singapore and Seoul.
During the flight he developed severe pain in his left eye and he could not see through his left eye and the pain became unbearable. As soon as the complainant landed in San Francisco, he arrived at the East Bay Retina Consultants clinic.
Due to the flight travel, the complainant/patient had suffered injury to the optic nerve and caused permanent damage to his left eye. The complainant alleged that due to the gross negligence of the opposite no.1, he developed glaucoma in his left eye.
Thereafter, the complainant issued a legal notice to the opposite party no.1 seeking payment of $100,000 as compensation. The complainant filed a consumer complaint before the National Commission and prayed for Rs. 8,46,79,000/- as compensation from the opposition parties.
The issue for consideration before the bench was whether the doctor and the hospital were liable for the loss caused to the complainant or not?
The bench relied on the AIIMS report and observed that the surgeon was conscious about air travel restrictions after such an operation, and had already refused to fly the patient to Kathmandu once. The report further states that “the subsequent development of chronic glaucoma from the incident is unlikely as the patient had well controlled IOP for a long period after the incident. However, the patient has a tendency to glaucoma as in other seen in the eye.
The National Commission, after careful perusal of the replies of the complainant to the cross-examination questions of the opposite side, states that we do not agree with the replies of the complainant.
The bench relied on the case of Jacob Mathews v. State of Punjab, where the Supreme Court had observed that in every case where the treatment is not successful or the patient dies during surgery, it cannot automatically be assumed that The medical professional was negligent.
In view of the above, the National Commission observed that it is not possible to conclusively attribute non-compliance of the duty of care and standard of practice on the part of the treating doctor and the hospital and accordingly, dismissed the complaint.
News Source – lawtrend