Infection after surgery is not always negligence

A person who holds himself out to give medical advice and treatment impliedly undertakes that he possesses skill and knowledge for the purpose. The practitioner must demonstrate reasonable degree of skill and knowledge and exercise reasonable degree of care. But if the inevitable occurs it is not always the fault of the treating personnel.

The eye is the most precious organ of the body. Negligence results in blindness which can ruin a man’s life and hence excellence in skill and care has to be exercised. But if the inevitable occurs it is not always the fault of the treating personnel as demonstrated in the case below.

A retired Air Commodore 75-year-old was admitted for cataract surgery in the right eye in L V Prasad Eye Institute. Intra Ocular Lens was implanted in the patient. On the next day the patient developed headache and severe pain in the right eye. He was re-operated ie Vitrectomy was performed by removal of IOL. Thereafter, the patient developed infection in his right eye and finally lost eyesight of the right eye.

For getting his left eye operated he went to Belgium. Vision was restored in the left eye. He therefore alleged that the loss of vision in the right eye was due to gross negligence and improper application of skills, lack of aseptic conditions and improper postoperative care and thus negligence on part of the doctor and deficiency in service including lack of emergency medical facilities. This led to disfigurement of the face, loss of vision and loss in business.

The question that arose for consideration is:

1. Whether the complaint is maintainable under the Consumer Protection Act and the complainant is a consumer.

2. Whether the loss of vision of the right eye was as a result of negligence in conducting the surgery or deficiency of service on behalf of the Institute and whether the patient is entitled for his compensation.

The courts held as follows:

1. As far as the question relating to the maintainability of the complaint is concerned, although the hospital subsequently refunded the amount, initially the complainant was charged towards medical service and hence maintainable under CPA.

2. With regard to the second question the defences put up by the Institute were as under:- It was shown that four other operations were performed in the same operation theatre on that particular day when the patient was operated and no infection was noticed in these cases. Fumigation record revealed fumigation was done regularly on a weekly basis. Inspite of the best care and aseptic conditions maintained in the hospital, the infection could have developed because of the age of the patient and the fact that he was diabetic. Diabetes reduces the resistance of the patient.

There is also an element of risk involved in any medical procedure and more so in surgical operations and the patient was in the category of high risk factor group. As he was an aged man suffering from diabetes where the risk of postoperative infection is much higher. The doctor had taken adequate and necessary care and administered required medicines to avoid infection but inspite of this the patient did not improve. Also the infection was detected early, treated adequately and requisite referral and second opinion obtained.

The allegation that the hospital lacks back up service and emergency medical services was not supported by any evidence and even otherwise, this had no nexus with the infection of right eye of the operation.

In Laxman Joshi V/s Dr Godbole it is stated that the duties which a doctor owes to his patient are clear. A person who holds himself out to give medical advice and treatment impliedly undertakes that he possesses skill and knowledge for the purpose. The practitioner must demonstrate reasonable degree of skill and knowledge and exercise reasonable degree of care.

It was proved in this case that the doctor took adequate care as expected from him. There was no evidence of lack of reasonable care. In the case of medical treatment, much more so in the case of surgery, inspite of taking best care the patient may die. But that does not by itself establish that there is negligence on part of the doctor. The courts were not inclined to apply the principle of Res Ipsa Loquiter.

For the above said reason the complainant was dismissed without cost.