Medical Negligence

Najrul Seikh v. Dr. Sumit Banerjee & Another

SLP Civil 17437/2018

Subject: Medical Negligence resulting in complete loss of eye sight

Before the Supreme Court of India

Heard by the bench of Hon’ble Mr. Justice Vikram Nath J & Hon’ble Mr. Justice Satish Chandra Sharma J

Order: Civil Appeal was allowed order of the National Consumer Dispute Redressal Commission (NCDRC) & State Consumer Dispute Redressal Commission (SCDRC) was set aside and the order of District Consumer Dispute Redressal Commission (DCDRC) was upheld by the SC on 22.02.2024.

?Fact

Master Irshad on 14.11.2006 got an injury in his right eye. He was taken to Disha Eye Hospital by his father who was a BPL Card Holder and the examination report revealed that Irshad was suffering from a traumatic cataract and required a minor surgery. The next day, he was taken to Disha Eye Hospital. As the father was unable to finance his son’s treatment the Doctor at Disha Eye Hospital approached the Doctor & partner at Megha Eye Hospital on 18.11.2006. Thereafter, the Respondent confirmed the medical opinion and operated the boy. After the operation the boy was experiencing irritation, pain, and blood clotting, the father visited the operating doctor multiple times but no improvement came in the eye problem.

The Doctor at Disha Hospital later referred the boy to the Regional Institute of Ophthalmology where it was revealed by Dr. Anindya Gupta, RMO-cum-Clinical tutor from the Burdwan Medical College that it was a case of Retinal detachment leading to permanent loss of vision in the right eye and it was mainly due to pre-operative and post-operative care and rehabilitation.

Complaint before DCDRC

The complaint was filed u/s 12 of the Consumer Protection Act by the father of the boy and the present appellant. The Complaint was allowed by the DCDRC with clear observation that the boy lost his vision due to the negligent attitude of Respondent manifesting through lapses in pre-operative and post-operative care and rehabilitation.

Order of DCDRC

The DCDRC found a deficiency in the medical services provided by the Respondents and as such directed the Respondents on 16.05.2013, for payment of Rs. 9,00,000 as compensation, in favor of the Appellant within a period of one month, failing which, the amount would be subject to an interest @ 10% until the date of realization.

Appeal by Respondents before SCDRC

The SCDRC dismissed the order of DCDRC & observed that the Appellant father had failed to establish deficiency of service/negligence on the part of the Respondents.

Revision by the father before NCDRC

Aggrieved by the dismissal of his Appeal, complainant preferred revision before the National Consumer Disputes Redressal Commission & NCDRC also dismissed the Revision on 09.06.2016 & affirmed the decision of SCDRC & held that there was no negligence on part of the Respondents and concluded that the Appellant’s delay of one month in approaching the Reigonal Institute of Ophthalmology was fatal for his son.

Observation of the Supreme Court

1.????? The DCDRC has made specific findings regarding lapses in duty of care by Respondent both pre-operative and post-operative standards for conducting a traumatic cataract surgery relying on the evidence of Dr. Anindya Gupta, RMO-cum-Clinical tutor from the Burdwan Medical College.

2.????? A connection is established between the lapses in post-operative care and the development of loss of vision after the operation.

3.????? The expert evidence of Dr. Anindya Gupta went entirely uncontroverted due to the absence of cross-examination and the failure of the Respondents to bring on record any other contradictory expert evidence.

4.????? Despite the presence of evidence pointing towards negligence of the Respondents, both the SCDRC and the NCDRC failed to consider it and relied only on the report of the Medical Council.

5.????? On a perusal of the Medical Council report, it appears that the Medical Council did not delve into the nuances of pre-operative and post-operative care.

6.????? The finding of SCDRC & NCDRC of contributory negligence on the part of the Appellant is entirely unsubstantiated by any expert opinion.

7.????? Both the forums have mechanically and exclusively relied upon the Medical Council report and reiterated its findings without any reference to the evidence of Dr. Gupta.

8.????? The Respondents are directed to comply with the order of the DCDRC within one month from the date of this order.

Seema Bhatnagar