Bombay HC refuses to set aside lower court’s order to ‘issue process’ against accused doctor

Based on the report from the committee, Kshirsagar filed a criminal complaint of negligence during surgery against Kankaria.

THE BOMBAY High Court recently refused to quash and set aside the order of a Pune court “issuing process” against Dr Shrutika Kankaria, who was accused of botched-up cataract surgery of a senior citizen in 2016. Issue process means that if in the opinion of a magistrate taking cognisance of an offence, there is sufficient ground for proceeding against the accused, the magistrate may summon the accused to be present before the court.

Justice S S Shinde said, “It is not desirable to give elaborate reasons at this stage, suffice it to say that prima facie case is made out for issuance of process.” A 68-year-old woman, Anusaya Kshirsagar, a resident of Pune, due to her poor right eyesight approached Asian Eye Hospital at Pune in April 2016. She was examined and informed that there is cataract in her right eye, and that she has to undergo an operation for cataract removal and implant of lens surgery. She agreed and chose a package of Rs 50,000.

On April 14, 2016, Kankaria performed the operation on her right eye. It is alleged that half an hour after the operation by Kankaria, Kshirsagar’s son was called and told that despite efforts, toric lens could not be implanted his mother’s eye. It was alleged that after several efforts were made the lens were not adjusted. It was further informed that there is a possibility of injury to the back of Kshirsagar’s eye, retina. It was informed and assured that after taking the prescribed medicine and eye drops, the condition will improve.

Since there was no relief, Kshirsagar made repeated complaints that even after the operation, she could not see anything through her right eye. She could only see black patches. But Kankaria did not take her complaint seriously and neglected her and repeatedly told her to continue to put the prescribed eye drops and assured her that after some time, her vision will improve.

After meeting several doctors, Kshirsagar was told that her vision will never be restored due to partial retinal detachment. Kshirsagar alleged that due to Kankaria’s negligence, she is suffering “hardship and blindness”.
On May 16, 2017, a written complaint was made to Deputy Director, Health, Pune. Thereafter, Director of Health, Pune, formed a committee of experts headed by Dr Tatyarao Lahane, Dean of J J Hospital, Mumbai. After examining the complainant, the expert doctors gave an opinion that Kankaria was negligent in Kshirsagar’s post-operative care.

Based on the report from the committee, Kshirsagar filed a criminal complaint of negligence during surgery against Kankaria. The Pune magistrate court issued process against Kankaria, which was challenged before the sessions court. The sessions court upheld the order, following which Kankaria approached the High Court.

On Dr Lahane’s committee report, in which retinal surgeon’s consultation was suggested, Kankaria argued that she was a retinal expert herself. Kankaria’s lawyer told court that she is a trained and certified retinal specialist from Sankara Netralaya in Chennai, which is Asia’s best eye hospital. Kankaria further told the court that she checked the retina herself as a retinal specialist and had also asked the patient to take second opinion from Dr Prakash Kankariya and another vitreo-retina specialist at Asian Eye Hospital, for which she did not come. Kankaria added that the patient was also asked to take second opinion from outside if she desired.

Kankaria also told the court that she has delivered her care with “great compassion, commitment and scientific protocols”. It is an attempt by the complainant to spoil the doctor’s reputation, which is also seen by her repeated attempts to lodge a police complaint, which was denied to her, Kankaria told the court.

Justice Shinde said, “At this stage, neither the defence of the petitioner on merits nor her challenge to an expert committee’s findings deserve consideration, when this Court finds that the constitution of expert’s committee was keeping in view relevant rules and procedure.”

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