1 (FA/14/59)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
FIRST APPEAL NO.FA/14/59
(Arisen out of Judgment and order dated 27/08/2013 passed by Ld.
Addl.Mumbai Suburban District in consumer complaint No.531 of 2006)
Shri.Gopal Joshi
R/at-Jeevaram bhawan,
4
th floor, B/46, R.R.T Road,
Mulund (W), Mumbai 400 080. Appellant(s)
Versus
1.Dr.Ashlesha Gala
Netra Jyot, Eye Care Centre,
206, Jai Commercial Complex,
At the Junction of M.G.Road &
S.L.Road, Opp.Hotel Gurukrupa,
Mulund (W), Mumbai 400 081.
2.Dr.Hemant Thakkar
1
st Navghar Lane,
Mulund (E), Mumbai 400 081. Respondent(s)
BEFORE:
Hon’ble Mr.Justice A.P.Bhangale, President
Hon’ble Dr.S.K.Kakade, Member
PRESENT:
For the
Appellant(s): Advocate Shri.T.S.Shilotri is present with authority
letter from Advocate Shri.Mangesh D.Nalavade
For the
Respondent(e) : Advocate Shri.Ajay Pawar is present for respondent No.1.
None present for respondent No.2.
ORDER
Per: Hon’ble Mr.Justice A.P.Bhangale, President
[1] Heard submissions. By present appeal, appellant has challenged
validity and legality of the impugned Judgment and Order dated 27/08/2013
2 (FA/14/59)
passed by Ld. Addl. Mumbai Suburban District in consumer complaint
No.531 of 2006 whereby the consumer complaint was dismissed. Brief
facts appears as underThe
complainant is resident of Jeevram Bhavan, 4th floor, B/46,
R.R.T.Road, Mulund (W), Mumbai 400 080 had approached his family
doctor, Dr.Hemant Thakkar due to problem in his eye. According to
Dr.Thakkar complainant need to undergo Cataract operation. He advised
him to approach Dr.A.M. Gala who at Netrajyot Eye Care Centre, 206, Jai
Commercial Complex, Mulund (W), Mumbai 400 080. Thus, on 09/08/2005
Dr.Gala had advised the complainant to undergo Cataract operation. He was
initially examined and it was decided to hold operation on 12/08/2005 at 8
a.m. The eye operation was conducted and the patient was discharged at
evening on the same day. The complainant thereafter complained of cornea
swelling to his left eye and ultimately lost his eye sight of left eye. Though
the complainant had used eye drops as prescribed he was referred to
Dr.Nikunj Shah and Dr.Nikhil Gokhale by Dr.Gala. The two doctors to
whom patient was referred opined that there was injury to retina of the
complainant and complainant had to undergo another operation on left eye
on 02/09/2005. According to the complainant, the operation had failed and
complainant lost his eye sight of left eye. Further according to complainant
Dr.Gala ought not to have referred the complainant to Dr.Nikunj Shah and
Dr.Vatsal Parekh. Complainant alleged that there was medical negligence
by Dr.Gala and Dr.Thakkar as well.
[2] According to opponent No.1-Dr.Gala, patient had undergone
operation at the hands of Dr.Parekh regarding injury to cornea and therefore
he is not concerned with that operation. He also disputed his liability about
the cataract operation or failure thereof. According to Dr.Gala it was a
minor operation and was performed successfully and later on when injury to
3 (FA/14/59)
cornea was complained of he had referred the patient to the competent
doctors.
[3] We have considered the reasons stated by the Ld.Forum below in
details regarding the observations as to the facts and medical negligence
including the ruling of Hon’ble Supreme Court in Civil Appeal No.3541 of
Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009 2009 CPJ
page 32 (SC.
[4] It is true that medical practitioner would fail below the standard of his
reasonable competency conduct if there are want of precautions to perform
the operation or surgery. In the present case, we do not find any evidence
from the opponent No.1 i.e. Dr.Gala as to his initial observation of the
patient (complainant). Standard of reasonable care and precaution on the
part of surgeon before performing operation necessarily and ought to be
supported by documents such as Fitness Certificate of the patient to undergo
surgery or operation and Consent Form at pre-operative stage indicating that
the patient had given his free consent for undergoing the surgery. If
according to Dr.Gala Cataract surgery was minor operation he should have
taken precaution that patient is advised preliminary medical examination
indicating that patient did not suffer from ailments like high B/P, Diabetes
etc. or if he is suffering the necessary medical test to be performed and it
ought to be ensured from the competent examining doctor that the patient is
fit for undergoing surgery as contemplated in the case of complainant. We
do not find any evidence in this regard nor we find that Ld.District Forum
performed its duty to enquire as to whether surgeon concerned had insisted
upon Fitness Certificate of the patient or whether patient had given his free
consent to undergo the surgical operation. Apart from this, considering the
judicial precedent relied upon on behalf of the opponent in First Appeal
No.956 of 2006 decided by the State Consumer Disputes Redressal
Commission, Rajasthan, Jaipur between Mrs.Damayanti Devi v/s.
4 (FA/14/59)
Dr.Indu Arora decided on 05/06/2009 and the principles of medical
negligence, we are not questioning the requisite professional skill of
Dr.Gala nor we impute professional negligence upon him on account of
performance of operation in the facts of the case as he is post graduate in
surgery and experienced Ophthalmologist. Our observations are limited to
failure to take precautions on account of not insisting upon Fitness
Certificate or Consent Form in writing from the patient at pre-operative
stage since in the present case patient had approached Dr.Gala on
09/08/2005 and was called on 12/08/2005 at 8 a.m. for operation of the
cataract. There was sufficient time gap during which complainant could
have been medially examined in respect of ailments which he suffered and
regarding fitness of the complainant to undergo the surgical operation in
respect of cataract of his left eye. In our view, had these precautions been
taken by Dr.Gala then he may have been exonerated from the liability. In
absence of these precautions Ld.District Forum failed in its duty to address
itself on these questions and simply considering the other facts proceeded to
dismiss the complaint. Our attention is also invited to the Article -‘Medical
tests before eye surgery- when you need them – and when you don’t ’
published by American Academy of Ophthalmology in the year 2017 in the
periodical ‘Choosing wisely (an initiative of the ABIM Foundation). It
cannot be disputed that cataract surgery in modern days is low risk eye
surgery as it is usually done with local anesthesia to numb the eye and then
medicines are prescribed for relaxation of the patient. However, observation
is mentioned as, ‘Even though eye surgery is very low risk, many healthy
people get a routine set of tests before their surgery. In these cases, the
tests don’t change the surgery or make it safer.’ The article further reads
as, ‘You may need an EKG if you have heart disease or symptoms such as
chest pain or shortness of breath. If you have diabetes, you will probably
need a blood test to make sure it is under control.’ These observations are
clearly indicative of precautions that need to be taken before any eye
5 (FA/14/59)
surgery is performed in cases of patient suffering from ailments such as
hypertension or diabetes. Necessary medical tests are necessary so that the
competent doctor examining can certify that patient is fit for surgery.
Furthermore, surgeon shall also take precaution to obtain free consent of the
patient or close relative in writing before he can be subjected to surgery. For
want of these precautions only we partly allow this appeal irrespective of
the failure of the surgery. We direct the appellant Dr.Ashlesh M.Gala to
pay sum of Rs.25,000/-(Rupees Twenty Five Thousand only) as
compensation inclusive of charges for surgery to be refunded in the sum
of Rs.15,000/- (Rupees Fifteen Thousand only). We also direct litigation
costs in the sum of Rs.5000/- (Rupees Five Thousand only) shall be paid
to the complainant. The amount shall be paid within one month from
the date of this order failing which it shall carry interest @ 9% p.a.
from the date of order till realization. Impugned order is set aside.
Appeal is partly allowed accordingly.
Certified copy of this order be supplied to both the parties.
Pronounced on
23
rd March, 2018.
[JUSTICE A.P.BHANGALE]
PRESIDENT
[Dr.S.K.KAKADE]
MEMBER
rsc
--
http://www.dnaindia.com/mumbai/report-doctor-penalised-for-improper-eye-surgery-2602557
The Maharashtra Consumer Dispute Redressal Commission has recently pulled up a Mulund-based ophthalmologist, Dr Ashlesh Gala, for a botched up cataract surgery which resulted in the loss of vision for one of his patient. The forum held that the doctor failed to take the preliminary precautions of conducting the mandatory medical tests for the consumer which resulted in vision-loss in one eye.
The commission has asked the doctor to pay a penalty amount of Rs 45,000 toward the complainant for his mistake. However, the patient, Gopal Joshi, is unhappy with the order and has decided to take the matter to the National Commission.
The commision's order read,"It cannot be disputed that the cataract surgery in modern day is a low-risk eye surgery as it is usually done with local anesthesia to numb the eye and then medicines are prescribed for relaxation of the patient. However, even though eye surgery has very low risk, many healthy people get a routine set of tests done before the surgey is conducted. In these cases, the tests don't change or make it safer but helps controlling blood pressure and sugar during the time of the surgery."
Meanwhile, Joshi's lawyer, Mangesh Nalawade, while speaking to DNA said, "Our plea was on the grounds of negligence as the medical papers say that there was a cornea tear of my client which lead to loss of his vision in one eye. But, the aspect of negligence was not considered by the Commission. We are definitely approaching the National Consumer Dispute Redressal Commission and filing an appeal."
--
http://www.choosingwisely.org/patient-resources/medical-tests-before-eye-surgery/
If you’re going to have cataract surgery or another eye surgery, you may be given some medical tests first. For example, you may have an electrocardiogram (EKG) to check your heart, or a complete blood count (CBC) to check for anemia, a low amount of red blood cells.
These tests may make surgery safer. For example, they may find medical problems that lead to a delay or change in your surgery. But most people don’t need these tests before eye surgery. Here’s why:
The tests usually aren’t helpful for low-risk surgery.
Generally, cataract and other eye surgeries have very low risks of complications or problems, such as heart attacks. There really isn’t anything doctors can do to lower the risk any further. Eye surgeries do not take long, and they use only a local anesthetic to numb the eye, often with a medicine to relax you.
Even so, many healthy people get a routine set of tests before eye surgery. In these cases, the tests don’t change the surgery or make it safer.
They can lead to more tests.
The tests themselves are very safe, but they can cause false alarms. This can lead to anxiety and more tests. And they can needlessly delay your surgery. For example, one test may be followed up with a repeat test, an ultrasound, a biopsy, or a test that exposes you to radiation, such as an X-ray or CT scan.
The costs can add up.
Your health plan may not pay for the tests if you do not have a specific medical need for them. If this happens, you may need to pay for them. It could cost between $25 and $50 per test, according to HealthcareBlueBook.com.
So when are the tests needed?
You may need the tests if you have certain kinds of health conditions or illnesses. For example, you may need an EKG if you have heart disease or symptoms such as chest pain or shortness of breath. If you have diabetes, you will probably need a blood test to make sure it is under control.
Based on the test results, your doctor may need to change your surgery or anesthesia. You may need special care during or after the surgery. Or you may need to postpone the surgery until the problem is treated or controlled.
This report is for you to use when talking with your health-care provider. It is not a substitute for medical advice and treatment. Use of this report is at your own risk.
© 2013 Consumer Reports. Developed in cooperation with the American Academy of Ophthalmology.
04/2013
Posts
