Consumer Rights: A Case Study on Medical Negligence

Consumer Rights: A Case Study on Medical Negligence

Revision Petition

The document is a legal order from the National Consumer Disputes Redressal Commission New Delhi, concerning Revision Petition No. 1678 of 2019.

Case Background

The petitioner, Tapan Samanta, filed against Dr. Bidyut Kumar Mondal & Anr., challenging the order of the State Commission which was in favor of the respondent.

Medical Issue

The case involves a medical complaint where the petitioner suffered eye damage allegedly due to an incorrect prescription by the respondent doctor.

Commission’s Decision

The National Commission set aside the State Commission’s order, upheld the District Forum’s decision, and directed the respondents to comply with the District Forum’s order within one month.

Final Order

14

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI


REVISION PETITION NO. 1678 OF 2019

(Against the Order dated 28/12/2018 in Appeal No. 817/2016 of the State Commission West Bengal)

  1. TAPAN SAMANTA

S/O. SRI SANTOSH SAMANTA, KALIKAPUR UTTAR, OLANPARA, BANGALPUR, BAGNAN ULUBERIA,

HOWRAH-711303

WEST BENGAL Petitioner(s)

Versus

  1. DR. BIDYUT KUMAR MONDAL & ANR.

    EYE SPECIALIST & MICRO SURGEON PRECTISING AT MAMTA OPTICALS BENGNAN NOUTN BUS STAND

    HOWRAH-711303 WEST BENGAL

  2. MAMTA OPTICALS

THROUGH MANAGER, BEGNAN NOTUN BUS STAND, HOWRAH-711303

WEST BENGAL Respondent(s)


BEFORE:

HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER


FOR THE PETITIONER : MR. T V GEORGE, ADVOCATE

MR. PANKAJ BIST, ADVOCATE MR. VIJAY RAWAT, ADVOCATE

FOR THE RESPONDENT : DR. S.K. KHATRI, ADVOCATE FOR R-1 AND R-2


Dated : 12 January 2024

ORDER

  1. The present Revision Petition (RP) has been filed by the Petitioner against Respondents as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 28.12.2018 of the State Consumer Disputes Redressal Commission West Bengal (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 817 of 2016 in which order dated 04.08.2016 of Howrah District Consumer Disputes Redressal Forum (hereinafter referred to as District Commission) in Consumer Complaint (CC) no. 432 of 2013 was challenged, inter alia praying for setting aside the order dated 28.12.2018 of the State Commission and restore the order dated 04.08.2016 of the District Forum.

  2. While the Revision Petitioner (hereinafter also referred to as Complainant) was Respondent no.1 before the State Commission and Complainant before the District Forum, Respondent no.1 herein (hereinafter referred to as OP No.1) was Appellant before the State Commission and OP-1 before the District Forum, Respondent No.2 was also Respondent no.2 before the State Commission and OP No.2 before the District Forum (hereinafter also referred to as OP No..2).


  3. Notice was issued to the Respondents on 30.07.2019. Parties filed Written Arguments/Synopsis on 21.02.2023 ( Petitioner) and 14.02.2023 ( respondent nos. 1 and 2) respectively. RP has been filed with a delay of 119 days. Delay in filing the RP was condoned after considering the reasons for delay / grounds of condonation stated in condonation of delay application.


  4. Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that Complainant visited OP No.1, Doctor, on 03.02.2012 with vision problem at OP No.2’s chamber when OP No.1-Doctor diagnosed fungal infection in eye and prescribed medicines, one of which was ‘Atrochlor D’ and advised wearing dark glasses. After using said medicine, the complainant suffered intolerable paid and irritation. Complainant, therefore, visited another doctor, namely, Dr. Nirmal Nayak on 06.02.2012. The Complainant thereafter came to know that his eye has been damaged completely due to overdose of said medicine being steroid. Thereafter, Complainant visited Disha Eye Hospital, Barrackpore and Shankara Netralaya at Chennai for his vision and according to him all his efforts went in vein due to such wrong prescription and treatment by Op No.1 and treatment of Complainant was completely lost. The Complainant being aggrieved of the said act, filed CC before the District Forum and District Forum vide order dated 04.08.2016 allowed the Complaint against OP No.1 and dismissed the complaint against OP no.2. Being aggrieved of the said order of the State Commission, the OP No.1 preferred an appeal before the State Commission and State Commission vide order dated 28.12.2018 allowed the Appeal of OP No.1-Doctor. Therefore, Complainant is before the Commission now in the present RP.


  5. Petitioner has challenged the said Order dated 28.12.2018 of the State Commission mainly/ on following grounds:


    1. The State Commission was wrong in holding that Attrochlor D eye drop is not a steroid but a combination of various drugs and therefore by using it the petitioner could not have lost his eye sight.

    2. State Commission is not right in concluding that District Forum came to the findings of fault on the part of respondent no.1 without any reference to expert opinion or medical literature.


    3. Petitioner had shown to the Fora below from medical literature that Atrochlor – D is a steroid and use of which is contra indicated to eye disease with which the petitioner was suffering.


  6. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.


    1. Counsel for the Petitioner apart from repeating the points which are stated in para 5 relied upon various medical literatures / articles.


    2. Counsel for the Respondents argued that OP No.1 has treated the Complainant in accordance with standard of care. Counsel relied on the judgment of the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab and Anr. (2005) 6 SCC 1.


  7. We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties. The State Commission in its order has observed as follows :


    “The prescription dated 3.2.2012 by the Appellant / OP1-Dr., as available on records, reveals that the Appellant / OP1-Dr prescribed medicine after diagnosis ‘viral keratitis’ and hence allegation of absence of diagnosis by the Appellant/OP-1 Doctor is not true.


    Upon perusal of the impugned order it appears that ld. District Forum observed on the points of Medico-Technicalities without any specific reference to any Medical Text Books or Publications.


    Rather, the Publication as referred to hereinbefore as adduced by the Ld.Advocate for the Appellant /OP1-Doctor reveals that ‘Attrochlor D’ eye drop is not the absolute steroid but a combination of various drugs as referred to above, and hence for use of such drug the patient cannot loss his vision completely.

    Ld. Advocate for the Respondent / Complainant has not filed any specific cogent evidence contradicting the aforesaid submissions of the l d. Advocate for the Appellant/OP1-Doctor and the Publications filed by the ld. Advocate of the Appellant

    /OP-1 Doctor.


    The facts of the decision referred to by the Ld. Advocate for the Respondent 1 / Complainant being not identical with the facts of the case on hand, the same is not relevant.


    The foregoing evidence on record clearly indicates that there was no deficiency in service on behalf of the Appellant / OP1-Doctor and hence the instant Appeal deserves to be allowed.”


  8. In this regard, extract of relevant paras of orders of District Forum are given below:


    1. In his prescription o.p./ Dr. Mondal advised the first medicine being ‘Atrochlor D’ eye drop to be used trice daily and he diagnosed that the petitioner Tapan Samanta suffered from “viral Keratities”. Keratities is a condition in which the eyes cornea, the front part of the eye, becomes inflamed. The condition is often marked by moderate and intense pain and usually involves pain, impaired-eye sight, photophobia, red eye and a gritty sensation as seen from the famous medical literature. This o.p. advised ‘Atrochlor D’ which is a steroid as known from the study of medical literature as well as consultation with doctors engaged in the sphere of eye treatment.


    2. Steroid is a organic compound that has four rings arranged in a specific confirmation connected to each other. Some of the popular example of steroids are cholesterol, Sex hormone, Dexa Methasone etc. The core of steroid is mainly composed of 20 carbon atoms. But generally we refer to steroid as a man made compound that are produced to enhance the growth. But such drugs are illegally imposed even if the sportsman uses this steroid to enhance their stamina and power. Such steroid have many a disadvantage as the same harms the nerves system with risk of kidney disease, liver disease and cancer and also high risk of Hepatitis ‘B’ and ‘C’ and HIV as also seen from the medical literature. Actually the use of steroid destroys our power of self protection. If such steroid is used in the case for corneal ulcer then the ulcer gets severely increased and takes the situation out of control.


    3. In the instant case the o.p. Dr. after clinical examination advised the petitioner to use ‘Atrochlor D’ which is a composition of Atropin Plus Chloramphenicol and Dexamethasone which is a steroid combination. In the medical literature, it is clearly mentioned that ‘Atrochlor D’ is a drug with steroid which causes harm to the eye specially when there is ulcer in the eye. In the instant case the petitioner suffered from “viral keratities” wherein use of steroid causes harm as specifically mentioned in the medical literature that steroid should be avoided at all costs in this condition of keratities and such

      application of steroid causes significant worsening of the ulcer to form an ‘Amoeboid’ or geographical ulcer. Generally, such steroid are used in the case of iritites or uvitites which causes pain in the eye brow region.


    4. Ld. counsel for the o.p. doctor in his written argument page 2 rightly stated that the petitioner came to the o.p. no. 1 doctor with severe corneal ulcer with unbearable pain on 03.02.2012 and the doctor advised him ‘Atrochlord’ eye drop and others but the petitioner did not follow up the treatment and ld. counsel also stated in the last but previous para of page 2 of written argument that ‘Atrochlor ‘D’ is not a steroid at all in any manner whatsoever. Our medical literature categorically mentioned that ‘Atrochlor D’ is a steroid and if same is used in corneal ulcer then the same ulcer gets severely increased and takes the situation out of control. Thus this steroid drug though helps in uvitites or iritites but use of such drug in the case of fungal keratities worsens the conditions of the eyes as happened in this case when the petitioner came to the o.p. Dr. Mondal with minor vision problem or with severe corneal ulcer as stated by ld. counsel for o.p. no. 1 and the doctor also opined that it was a case of fungal infection as noted by him in his prescription as “viral keratities” but he wrongly suggested ‘Atrochlor D’ which is a steroid as known from medical literature and thus the irritation in the eyes of the petitioner developed more and his vision became unclear and when he went to another doctor namely doctor Nirmal Nayak who specifically opined in the very beginning of his prescription that the “patient was treated with steroid elsewhere” which was not the actual medicine for the treatment. Thus from the opinion of expert doctors in the field as well as from the medical literature when it is found and established that ‘Atrochlor D’ is a drug made of steroid and even if such steroid are helpful in several ways towards treatment of other diseases of eyes like iritites or uveitis but use of such ‘Atrochlor D’ in case of fungal infection or fungal keratities was not proper as the same worsens the corneal ulcer. Thus a drug like ‘Atrochlor D’ which brings relief to the patient in the case of uveitis which is the inflammation of the uvea, the pigmental layer that lies between the inner ratina and the outer fibrous layer composed of sclera and cornea but in the “viral karatities” as in the instant case is a condition in which the eyes cornea i.e., the front part of the eye which suffered from irritation if dealt with such steroid in the form of ‘Atrochlor ‘D’ then the condition of eye worsens and so in case of corneal ulcer use of steroid is strictly prohibited as noted in the medical literature. Ld. counsel for the petitioner in his written argument submitted that the complainant has wasted times by changing the doctor in regular basis after each visit and due to such reason the disease of the complainant gradually increased only for his negligence, as such, lastly the Therapeutic Keratoplasty was done and by the biopsy it was diagnosed that the disease of the complainant is Acanthaemba Karatitis. He further submitted that as per per the famous book of eye viz. “Parasons’ Disease of the Eye”, the said disease viz. Acanthaemba Karatitis is a protozoal infection, related to swimming and bathing in contaminated water and the diagnosis is usually missed in early stages and the clinical appearance of the same mimics viral karatitis, which was the diagnosis of the o.p. no. 1 as well as the Disha Eye Hospital and Dr. Nirmal Nayekk and the treatment of the viral karatitis as per the said book was properly given to the complainant by the o.p. no. 1. and so from the aforesaid points it is

      crystal clear that not for the steroid applied in the eye of the complainant but the complainant lost his eye sight, due to the Acanthaemba Karatitis, which is related to bathing or swimming in the contaminated water, and as such, the opposite parties could not be guilty in any way.


    5. Ld. counsel for o.p. further stated that the complainant has wasted times by changing the doctors and the petitioner misused his time not only by changing the doctors on regular basis but also after each visit not following their treatment and due to such reason the disease of the petitioner gradually increased only for his own negligence and as such lastly the reaped the fruits of his own deed.


    6. In view of above discussions this Forum finds that ‘Atrochlor D’ being steroid medicine being composed of Dexamethasone and others was wrongly advised by o.p. doctor for the patient which caused harm to the eye of the petitioner causing loss of his vision even if he underwent surgical operation in the Disa Eye Clinic as well as Sankar Netralay at Chennai later on but he could not recover. In the instant case the doctor rightly diagnosed that it was a case of viral keratities as the famous institution ‘Sankar Netralaya’ Chennai also opined after repeated check ups and Disha Eye Hospital diagnosed the same as corneal ulcer or keratities but use of steroid spoiled the whole matter when the o.p. doctor as well as his ld. counsel stated before Forum that the petitioner did not follow up the treatment and so he suffered but such plea of o.p. doctor is disbelieved by this Forum and discarded the same.


    7. In view of above discussions and findings this Forum concludes that due to wrong treatment of o.p. doctor the petitioner lost his vision for which he must be compensated even if it is well within the knowledge of this Forum that compensation in the form of money would not liquidate the loss suffered by petitioner but would come to his help in many a ways to cross hurdles where his normal eye would have helped him. There is a clear direction on the treatment of caratities in medicine literature “Aciclovir is the mainstay of treatment for HSV keratitis and steroids should be avoided at all costs in this condition. Application of steroids to a dendritic ulcer caused by HSV will result in rapid and significant worsening of the ulcer to form an ‘amoeboid’ or ‘geographic’ ulcer, so named because of the ulcer’s map like shape.”


    8. Thus, it is clear from the above discussions and findings that steroid should have been avoided at all costs in such condition by the o.p. no. 1 as application of steroid in ulcer causes rapid worsening of said ulcer in the eye and resulting the same in the instant case the petitioner, Tapan Samanta, lost his vision in right eye.


  9. We have carefully gone through the entire facts and circumstances of the case, the orders of the State Commission, District Forum, and rival contentions of the parties. District Forum has given a detailed and well-reasoned order in the light of available medical literature and opinion of other doctor to conclude that ‘Atrochlor D’ is a steroid and its use is contra indicated in cases of ‘viral keratitis’, as it harms the eyes when there is ulcer in the eyes. In our considered view, State Commission went wrong in reversing a well-reasoned order of the

    District Forum and considering that ‘Atrochlor D’ eye drops is a not an absolute steroid but a combination of various drugs, and hence with the use of this drug the patient cannot loose his vision. Even Dr. Nayak has stated that patient was treated with a steroid, which was not the actual medicine for the treatment. Hence, we are in agreement with the observations and findings of District Forum and are of the considered view that State Commission went wrong in reversing a well-reasoned order of the District Forum. Hence, we have no hesitation in setting aside the impugned order of the State Commission, and the same is hereby set aside. We uphold and restore the order of the District Forum. Respondents herein will implement the order of the District Forum within one month from the date of this order.


  10. Revision Petition is disposed off accordingly. The pending IAs in the case, if any, also stand disposed off.


………………………………………… DR. INDER JIT SINGH PRESIDING MEMBER

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