Per Mr. B.S.Wasekar, Hon’ble President 

1)                The present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986. According to the complainant, he is the grandson of Laxmi Sundaram who is dead.  The complainant took Laxmi Sundaram for her eye check up to the O.P.No.1 on 5^th July, 2006.  The O.P.No.2 diagnosed the problem as poor vision in the right eye and moderate vision in the left eye to be cystoid macular oedema cataract. The O.P.No.2 recommends the treatment called photo dynamic therapy followed a cataract procedure for the left eye.  The O.P.No.2 categorically told the complainant that operation is feasible even though she is of advance age.  The Laxmi was admitted in hospital on 20^th September, 2006 and necessary tests were carried out.  Though there was no improvement in the existing vision the complainant approached the O.P.No.2 for cataract operation of the right eye after one month.  Prior to operation on 20^th September, 2006 her blood count was measured and was stated to be in order.  The O.P.No.2 perused the report on 20^th September, 2006 and was ready to perform the surgery.  However, on 21^st September, 2006, instead of O.P.No.2, the O.P.No.3 stated that she would perform the surgery.  The complainant had never met the O.P.No.3.  She was not appraised of the case and the complainant had no confidence with the O.P.No.3.  The cataract surgery was performed on the left eye by the O.P.no.3.  It was painful.  When the bandage was open on 21^st September, 2006, the eye was swollen, blackish and still bleeding. The patient could not see anything.  On query, the O.P.No.3 told that there was some problem in the blood which had resulted in hemorrhage. The complainant consulted hematologist Dr.M.B.Agarwal.  A test was performed by him on 21^st September, 2006.  The said doctor stated that the patient had myeloid leukemia and blood platelet count was inadequate. It was only 30000 whereas for cataract operation the minimum should be 150000.  On perusal of the report of O.P.No.1/Hospital shows that the blood platelet count was said to be adequate when the same was inadequate.  The O.P. parties are liable for the negligence in cataract surgery when she was unfit.  The surgery resulted in deterioration of her health rapidly and subsequent death of the patient.  Therefore, the complainant has filed this complaint for recovery of Rs.5 Lakhs with interest at the rate of 9% from 21^st September, 2006 till the payment for physical, mental agony suffered by the complainant due to negligence of the opponent parties. 

2)                The O.P.No.1 and 2 filed their written statement.  It is submitted that the complainant has no locus standee to file this complaint.  He is the grandson of deceased Laxmi Sundaram who died on or after 27^th September, 2006. The complainant has not produced any proof of her death.  It is also not clear whether the deceased had left behind any will or testamentary document.  It is also not clear about the legal heirs of the deceased. Therefore, the complainant has no authority to file this complaint.  It is submitted that the deceased was examined by Dr.Nishikant Borse, Retina Consultant of O.P.No.1/Hospital on 5^th July, 2006.  The O.P.No.2 reviewed the case on 10^th July, 2006.  Due to her retina disease in both eyes, she was examined by the O.P.No.2. Cataract was an associate finding therefore he was examined by the O.P.No.2. In order to provide total eye care, deceased was referred to the concerned specialist i.e. the O.P.No.3. 

3)                The complainant has not produced the death certificate to know the exact cause of death.  As per case papers, deceased was aged about 91 years. On examination her best corrected visual acuity was FC 1 m N/36 in the right eye and F C 3 m N/36 in the left eye.  Intraocular pressure was 17 mm of Hg in the right eye and 15 mm of Hg in the left eye. She was examined by Dr.Nishikant Borse, retina consultant and found to have scarred CNVM in the right eye and active CNVM. (Choroidal Neovascular Membrane) with hemorrhages in the left eye.  She was diagnosed as a case of both eyes cataract right more than the left eye and both eyes CNVM, right eye scarred and active in the left eye. She was advised to undergo Fundus Fluorescein Angiography (FFA), Indocyanine, Angiography ICG and OCT.  The patient signed on the consent form for FFA/ICG and underwent the same investigation on 8^th July, 2006.  She was diagnosed as a case of scared CNVM in the right eye and active CNVM in the left eye on the basis of these investigations.  She was reviewed by me on 10^th July, 2006 and advised no intervention in the right eye and PDT with intravitreal tricort and to plan for left eye cataract surgery after one month of retinal treatment.

4)                The patient underwent left eye photodynamic therapy on 18^th July, 2006.  On 22^nd July, 2006, left eye intravitraeal triamcinolone injection was given.  She was again seen on 31^st July, 2006. Again, she attended hospital on 15^th September, 2006. She was examined by the O.P.No.2 and was advised to consult O.P.No.3.  She was diagnosed as a case of both eye cataract. She was advised to undergo left eye cataract surgery. She was examined by Dr.Maya Kalelkar, Physician on 20^th September, 2006 thoroughly and gave her fitness for cataract surgery under local anesthesia. Dr.Radhikar, Anesthetist of O.P.No.1 received the patient in operation theatre.  The patient signed consent form for the left eye cataract surgery.  She was operated by the O.P.No.3. During surgery, a pre existing P.C. dehiscence was noted, so the nucleus was removed and PCIOL was put in the sclcus.  On next day, after removal of the patch large area of echymosis was noted around the eye. The patient was suspected to have some form of bleeding disorder and was referred to Dr.Kiran Shah.  Dr.Shah advised her to undergo complete bleeding profile to rule out a bleeding disorder. They were advised to take opinion from Dr.M.B.Agarwal, a specialist in blood disease. Dr.Agarwal after detailed investigation diagnosed the patient as a case of Acute Myeloid Leaukemia. Patient’s platelet count was found to be low. Dr.Agarwal advised not to treat the patient for her disease due to her old age. 

5)                Again, on 27^th September, 2006, patient was found better.  Her eye drops were modified and she was advised to review again after ten days.  However, she did not come for follow up.  It is submitted that no patient can be declared unfit for cataract surgery due to age.  Cataract was associated finding for which she was referred the O.P.No.3 cataract specialist. The patient and relatives were made fully aware that the cataract surgery of left eye would be performed by the O.P.No.3. The pre operative investigations were perused by the physician and the anesthetist on 20^th September, 2006.  After satisfying themselves that investigations were within acceptable limit and the patient was fit to undergo cataract under local anesthesia.  The patient and the accompanying relative readily consented for surgery by O.P.No.3 and the consent was obtained on 20^th June, 2006 from the patient and accompanying relative Ms.Gayatri Chinnaswamy. It is submitted that the opponents are not guilty of medical negligence and all the allegations of the complainant are false.  Therefore, the complaint is liable to be dismissed with cost.

6)                The O.P.No.3 filed written statement and reiterated the facts narrated by the O.P.No.1 & 2.  It is further submitted that she is consultant in Cornea, cataract and refractive surgery department of O.P.No.1/Hospital.  The patient was seen by her on 15^th September, 2006.  She advised to undergo cataract surgery in left eye under her care.  The patient and the relatives were made aware that cataract surgery would be performed by her.  On the first post operative day, the patient was seen by her.  She noticed bleeding within and around the eye.  She referred the patient to concerned specialist. The patient condition was monitored and on 27^th September, 2006, eye examination was performed by her.  The bleeding inside and outside the eye had considerably reduced and physically the patient was stable.  Consent form was obtained from the patient and her accompanying relative namely Gayatri Chinnaswamy.  She also spoke to the complainant on 20^th June, 2006 and explained the details of procedure.  The treatment was given as per standard medical code therefore the complaint is liable to be dismissed with cost.

7)                After hearing all the parties and after going through the record, following points arise for our consideration

POINTS

REASONS

8) As to Point No.1 :- The opponents have challenged the maintainability of the complaint on the ground that the complaint is filed by the grandson of the deceased and he is not the legal heir of the deceased.  On the other hand, it is submitted by the complainant that the deceased was his grandmother.  She was staying with him. He took her to the hospital of the opponent for eye check up.  He paid the hospital charges from his account therefore he is the ‘consumer’ within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. The complainant has produced copy of his bank account showing the payment to the opponent hospital. According to the complainant, deceased was staying with him and he paid the hospital charges therefore he is entitled to file this complaint.  The evidence on record show that the deceased was staying with the complainant.  The complainant took her for eye check up to the O.P./Hospital.  He paid the hospital charges therefore the complainant is entitled to file this complaint.  

9) As to Point No.2 & 3 :- It is not disputed that deceased was aged about 91 years and she was taken to the O.P./Hospital for eye check up.  It is also not disputed that the deceased was operated for left eye cataract surgery on 20^th September, 2006 by the O.P.No.3. After operation, it was found that the deceased developed Hematoma with sub-conjunctival hemorrhage therefore she was referred to Dr.Agarwal, Hematologist for investigation. Dr.Agarwal gave opinion that the deceased was suffering from Acute Myeloblastic Leaukemia (AMIL-FAB-M2).  According to the opponents deceased was diagnosed as a case of both eyes cataract right more than the left eye.  She was advised to undergo left eye cataract surgery.  She was examined by physician of the O.P.No.1 on 20^th September, 2006 thoroughly and gave fitness certificate for cataract surgery. Dr.Radhikar, Anesthetist of the O.P.No.1 received the patient in operation theatre.  She was operated by the O.P.No.3.  On next day, she was suspected to have some form of bleeding disorder.  Therefore, she was referred to Dr.Shah. Dr.Shah advised to undergo complete bleeding profile. She was referred to Dr.Agarwal. Dr.Agarwal diagnosed her as a case of Acute Myeloid Leaukemia. Her platelet count was found to be low. Dr.Agarwal advised not to treat the patient for her disease due to her old age. During pendency, the matter was referred to J.J.Hospital for expert opinion. J.J.Hospital appointed Committee and submitted report dated 24^th March, 2011. The report of the J.J.Hospital is as under :

From all the above facts the following can be concluded

1.  The CBC report at Aditya Jyot Hospital was faulty which led to fitness for cataract surgery and hence patient suffered due to morbidity caused by post operative eye haemorrage.
2. However, the Ophthalmologist can not be held responsible for the same as the surgery was performed on the basis of the report which showed platelet adequate.
3. There are no documents showing exact events thereafter and the exact date of death of the patient.  However it can be said from the available documents that the cataract surgery causes ocular hematoma which was not life threatening.  The most likely cause of her death could be due to the disease per se i.e. Acute Myeloblastice Leukemia which has a very high mortality rate.

In view of the above report from J.J.Hospital, it is clear that the pathology report of the O.P./Hospital was faulty.  Due to faulty report of the Pathologist, operation was conducted and the patient suffered.  As per report, the Ophthalmologist can not be held responsible as the operation was conducted relying on the pathology report. The O.P.No.1 has not disputed the pathology report on record.  As per pathology report of the O.P.No.1 platelet on Smear was adequate. However, there was no number of platelet count. As per report of Dr.Agarwal, number of platelet was 30,000 only which were inadequate. The opponents have not explained on what basis the opinion was given about the adequate platelet.  It shows the negligence on the part of the O.P.No.1.  The O.P.No.2 is Chairman and Managing Director of the O.P.No.1.  Therefore, he is responsible.

10)              In the written statement, it is alleged by the opponents that physician gave fitness certificate and therefore the operation was conducted. In the written notes of argument, the opponents submitted that the treatment was given as per Standard Medical Code. The interrogatories were submitted to the opponents and the O.P.No.2 has given answer to Question No.12 that platelet count was not performed.  According to him, platelet count as a protocol and the required standard is not required to be performed prior to the cataract surgery under local anesthesia.   Admittedly, the patient was 91 years old lady therefore it was necessary for the opponents to take utmost care prior to operation.  According to the opponents, there was no previous history of bleeding disorder therefore platelet count was not performed.  The submission of the opponents can not be accepted.  The patient was old lady.  Therefore, it was necessary for the opponent to take platelet count prior to operation.  In the opinion of the J.J.Hospital’s Expert Committee, it was necessary to count platelet.  There was no platelet count, it shows the negligence of the O.P. The O.P.No.3 conducted operation relying on the pathologist and physician report.  As per the expert opinion the surgeon is not responsible as he conducted operation on the basis of pathology and physician report.  We agree with the expert opinion from the Committee of the J.J.Hospital.  The submission of the opponents can not be accepted. 

11)              The complainant has produced death certificate but no cause of death is given. Therefore, the opponents can not be held responsible for the death of the deceased.  However, the O.P.no.1 & 2 are negligence in giving fitness certificate for surgery of the deceased therefore they are responsible for the pain suffered by the deceased.  The learned advocate for the complainant has placed reliance on the judgment of the Hon’ble National Commission in the case of Dr.Kaushal Pandey –Versus- S.M.Panchori and Others decided on 12^th February, 2009, reported in 2009 INDLAW NCDRC 55.  In this case, stripped pleura was not sent for histopathological test. The Hon’ble National Commission observed that not sending it for test amounts to negligence of the hospital.  In para 9 of the judgment, the Hon’ble National Commission observed as under:

Had the said test been conducted and report obtained by the appellant in the month of September-October, 1994 it could have perhaps been possible to detect the cancer.  Though such early detection and proper treatment might not have saved the life of the deceased patient, we can assume that it would have prolonged his life.  We are, therefore, in full agreement with the finding of the State Commission that the appellant doctor was negligent to the above extent, viz., not taking out a sample of the peeled pleura and sending it for histopathological test after the performance of decertification.

In the instant complaint before us also, platelet were not counted.  As per report of Dr.Agarwal, platelet count were 30000 which were not sufficient for operation. It shows the negligence of the Pathologist and Physician of the O.P.No.1 & 2.

12)              The learned advocate for the complainant has further placed reliance on the judgment of the Hon’ble Supreme Court in the case of Smt.Savita Garg –Versus- The Director, National Heart Institute dated 12^th October, 2004 in Appeal(Civil) 4024 of 2003.  In this judgment, the Hon’ble Supreme Court has laid down as under :

It is the responsibility of the clinic that they must provide best of the services when they charge for the services rendered by them. In case it is found that services rendered by the clinic or hospital, as the case may be, is not up to the mark and it involves some negligence on their part, for which the patients suffer, then they are bound to reimburse them. 

It is further held that

In fact it is the hospital who engages the treating doctor thereafter it is their responsibility.  The burden is greater on the Institution/hospital than that of the claimant. The institution is private body and they are responsible to provide efficient service and if in discharge of their efficient service there are couple of weak links which has caused damage to the patient then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties.

In the instant complaint before us, the pathologist of the O.P.No.1/Hospital has negligently given report therefore the O.P.No.1 & 2 are responsible for it. The other judgments cited by the complainant are on the similar aspects.

13)              The learned advocate for the opponents has placed reliance on the judgment of Hon’ble National Commission in Sudhieendra Medical Mission Hospital –Versus- Kennan V.R. in Revision Petition No.2049 of 2001 decided on 6^th February, 2003 reported in 1986-2004 Consumer 8282 (NS), S.K.Sharma –Versus- Dr.Prafull in First Appeal No.189 of 2000 decided on 27^th November, 2002. In these judgments, there was no evidence to show the negligence of the Hospital. In the other judgments cited by the opponents also there was no evidence on record to show the negligence of the Hospital.  In the instant complaint before us, there is evidence on record to show the negligence of the pathologist of the O.P.No.1/Hospital therefore these judgments are not applicable.

14)              From the above discussion, it is clear that there was negligence on the part of the hospital.  The operation was conducted relying on the pathologist report and physician’s fitness certificate. The O.P.No.1 & 2 are responsible for such report.  The O.P.No.3 can not be held responsible.  There is no evidence on record to show the cause of death.  However, the evidence on record show that operation was conducted on the basis of pathology report/physician’s fitness certificate.  Therefore, the O.P.No.1 & 2 are responsible for the negligence.

15)              The complainant has claimed compensation of Rs.5 Lakhs.  As discussed above, there is no evidence showing cause of death.  The Expert Committee Report from the J.J.Hospital has given opinion that cause of death can not be attributed to cataract surgery.  It could be likely due to acute Myloblastic Leukemia itself.  Therefore, we think compensation claimed by the complainant is at higher side.  We think compensation of Rs.1 Lakh will suffice the purpose.  Besides this, the complainant is entitled for the cost of this proceeding Rs.10,000/-. Hence, we proceed to pass the following order.

ORDER

1. Complaint is allowed.
2. The O.P.No.1 & 2 are directed to pay Rs.1,00,000/- (Rs.One Lakh Only) to the complainant with interest at the rate of 9% per annum from the date of filing of the complaint i.e. 27^th April, 2007 till realization.
3. The O.P.No.1 & 2 are directed to pay Rs.10,000/- (Rs.Ten Thousand Only) to the complainant as cost of this proceeding.
4. The above order shall be complied with within a period of one month from today.
5. The complaint as against the O.P.No.3 stands dismissed.
6. Copies of this order be sent to the parties free of cost.

Pronounced on 1^st July, 2014