Order-1.
Date-13/05/2015.
Complainant by filing this complaint has submitted that by occupation service, working in Hooghly Jute Mill Company in Weavening Department having employee Code No. WGP02754 at 77, Garden Reach Road, P.O. BNR, Kolkata – 700043, P.S. WPPS and he is presently residing at Hooghly Jute Mill Colony.
Complainant is a member of ESIC, being Insurance No. 4109033980 allotted and issued by the office of ESIC, West Bengal and Hooghly Jute Mill deducted ESI contribution of complainant from his salary/wages regularly.
Fact remains that complainant was suffering from eye problem and as an insurance person under ESIC Scheme, complainant on 23.07.2013 visit to Ahamuni Clinic, Sanghati Pally Phanxhu Das Lane, Kolkata and consulted with Dr. P.K. Mutsuddi (PAR-VIII-1185/5811) and after checkup the said doctor referred to Eye, ESI Hospital, Sealdah for further treatment.
As per advice of Dr. Mutsuddi, complainant visited to ESI Hospital having Visit No. OPEYE0071300488, Regd. Dated 23.07.2013, Regd. No. WB010001587682 and complainant visited several times i.e. on 23.07.2013, 30.07.2013, 17.09.2013 and 08.10.2013 for diagnosis/treatment and doctor of Eye Department ESI Hospital, Sealdah, Kolkata prescribed medicine and pathological test after diagnosis as per advice of Dr. Ananta Banerjee for operation of eye and fixed date on 03.12.2013 for operation of cataract and complainant further visited to ESI Hospital, Sealdah on 26.11.2013 for review. Thereafter as per advice of Dr. A. Banerjee, ESI Hospital further pathological test had done and pathological report issued by ESI Hospital, Sealdah on 27.11.2013. Complainant after taking admission at ESI Hospital, Sealdah on 03.12.2013 under Dr. A. Banerjee.
Complainant further visited to ESI Hospital Sealdah on 22.10.2013 and after checkup doctor advised for operation of eye and fixed the date on 03.12.2013 for operative of catractive and complainant further visited to ESI Hospital at Sealdah on 26.11.2013 for review. Thereafter further pathological test had been done and pathological report issued by ESI Hospital, Sealdah on 27.11.2013. Complainant after taking admission at ESI Hospital, Sealdah on 03.12.2013 under Dr. Ananta Banerjee and as per impatient discharge summary, diagnosed as per doctor is advanced immature Catarctre, SICS + PCiol under la on 07.12.2013 and after operation, complainant discharged from ESI Hospital, Sealdah on 12.12.2013.
Thereafter no development in the eye of the complainant was found and he had no clear vision, his physical condition was gradually deteriorated and when complainant was worried and visited to ESI Hospital, Sealdah on 20.12,2013 and he reported his all problems to the doctor but doctor avoided to hear hive. After operation, complainant took medicine regularly but no development in the condition of eye, and or the vision of the eye was found worse and the doctors were reported again and again but they did not pay any heed for which the condition of eye gradually became worse and finding no other alternative, complainant visited Dr. Rajani Saraf of Eye Pavilion at 4B, Little Russel Street, Kolkata on 26.12.2013 and after diagnosis, doctor suggested for further operation as the operation on 07.12.2013 by ESI Hospital, Sealdah was not properly done. So, it is clear case of medical negligence and deficiency of medical service rendered by ESI Hospital, Sealdah or dispensaries fall within the ambit of service u/s 2(1)(0) and the employees or their dependants insured under ESI Act are consumers u/s 2(1)(d) of C.P. Act 1986.
But condition of the eye of the complainant was gradually deteriorated and no development in his eye was found. Further he visited another eye specialist Dr. Md Hasan Iqbal on 02.01.2014 and after check-up doctor observed that vision condition was very poor and hazy. So, he prescribed further medicine.
Practically complainant was a family man and only earning member of the family. So at that stage he was afraid to think about his future and future of his family members, he visited to ESIC Model Hospital, Thakurpukur, Joka, West Bengal on 11.01.2014 and the departmental doctor observed and orally said that the eye condition was very poor and they did not give any assurance of any further development of his eye and they did not agree to write their view in writing. The family members were worried to see worse condition of eye and physical condition of the complainant and they brought him to their native village at Bihar from Kolkata to Nav Jyoti Eye Hospital & Laser Centre on 21.01.2014 and Dr. Rajesh Sahay diagnosed the eye of the complainant and advised further operation urgently required as because previous operation on 07.12.2013 in ESI Hospital, Sealdah was not proper and doctor fixed the date of further operation on 28.01.2014 and as per advise of Dr. Rajesh Sahay the operation was done and complainant spent huge money for further operation.
No doubt the ops were legally duty bound and they have their responsibility to give reasonable care and adequate compensation to the complainant as because for their negligent and deficient manner of service/treatment complainant suffered mentally, physically and he is going to lose his eye if in timely he did not get proper opinion from Dr. Rajesh Sahay of Nav Jyoti Eye Hospital & Laser Centre and during that period, complainant suffered mental pain and agony and his family members also suffered and in the above circumstances, complainant is entitled to Rs. 56,000/- being the lawful claim of the complainant and also for suffering mental pain and agony complainant claimed in total Rs. 1,11,000/- as compensation against the ops.
On the other hand op no.4 by filing written statement submitted that the op no.4 is exclusively under the Administrative control of State and Directorate of ESI (M.B) Scheme, Govt. of West Bengal is the administrative head to look after all administrative matters of those ESI Hospitals. Further it is submitted that it is not understandable to the op no.4 as to why complainant did not approach to the Director, ESI (MB) Scheme Govt. Of West Bengal alleging such medical negligence and deficiency in service. Further it is not also understandable as to why complainant did not follow the advice of Dr. Rajsi Soraf and rather on the contrary he preferred to go to Dr. Md. Hasan Iqbal and those two doctors are not made parties in this case and in fact this complaint bears no merit in the instant case and there is no medical negligence and deficiency on the part of the op Hospital.
On the other hand op no.1 by filing written statement submitted that events happened beyond the knowledge of the ops concerned and is seemed to have been a capricious act on the part of the complainant concerned that he approached another organization on his own at his whims without any advice from the ESI Medical officers, who have been treating him since very threshold and fact remains that complainant suddenly ceased to keep in touch with the ESI Doctors and approached different medical hospitals/clinics for his treatment at his own will and even he did not bring anything to the notice of the ESI Doctors who had been treating him until then in respect of any problem of the eye in question. Fact remains that the ESI Medical Personnel and doctors treated him with utmost care and sincerity and question of medical negligence and deficiency of service made by the ops to the complainant is a cock and bull story for which the present complaint should be dismissed.
Decision with reasons
On proper study of the complaint, written version and also considering the argument as advanced by the Ld. Lawyers of both the parties and further on overall assessment of the documents as filed by the complainant, it is found that it is the case of the complainant that 1) on 23.07.2013 complainant visited the dispensary of ESI Hospital, Sealdah with Panel Dr. P.K. Mutsuddi and said doctor referred to Eye, ESI Hospital, Sealdah for special treatment of his eye. 2) Before operation on 23.07.2013, 30.07.2013, 17.09.2013, 18.10.2013 and 26.08.2013 complainant visited to ESI Hospital, Sealdah for his eye treatment. 3) On 24.07.2013 and 27.11.2013 pathological test have been done as per advice of ESI doctor. On 23.07.2013 date was fixed for eye operation of the complainant as complainant suffered from advanced in cataract. 4) Accordingly at ESI Hospital, Sealdah operation was held on 03.12.2013 and after operation he was released.
On 07.12.2013 complainant further suffered from eye problem in operated eye so, complainant visited the ESI Hospital at Sealdah on 20.12.2013 and 27.12.2013 but no development was found as per complainant. Complainant’s allegation is that complainant’s family members became worried about his eye condition and they consulted with Doctor Rajasi Soraf on 26.09.2012 and further consulted with Dr. Md. Hasan Iqbal on 02.01.2014 when ESI doctors did not hear his problem and finding no other alternative as per complainant to save his eye and life, complainant visited Nav Jyoti Eye Hospital & Laser Centre where they advised for immediate operation in the operated eye and thereafter that operation was done and ultimately complainant recovered.
Considering all those materials, it is clear that as per complainant it is the allegation of the complainant even post operation period ESI Doctor did not take necessary attention though complainant informed them about his problem and practically after operation he did not get back his eye sight and to save his eye he went to Nav Jyoti Eye & Laser Centre and after such operation by the said Centre his eye became cured and so it is no doubt medical negligence on the part of the ESI Hospital.
Ops have submitted that there was no negligence or deficiency on the part of the ops. Ops gave him all sorts of medical aid as and when he appeared. No doubt cataract operation was made, lens was placed inside the eye and he recovered and lastly he visited on 11.04.2014. But prior to that he visited ESI Hospital on 27.12.2013. But as per advise of doctor of ESI on 27.12.2013 complainant did not meet the ESI Hospital which is evident from the report dated 11.04.2014 and on that date i.e. 11.04.2014 op Hospital doctors declared him fit for duty and he was asked for PMT. Prior to 11.04.2014 complainant was asked to meet with doctor on 11.01.2014. But on 10.01.2014 complainant did not turn up. Thereafter complainant came on 11.04.2014.
But peculiar factor is that during that time he went to Dr. Rajni Saraf of Eye Pavilion on 26.12.2013 and operation date was fixed on 28.12.2013. From the medical certificate issued by Nav Jyoti Eye & Laser Centre dated 21.01.2014, it is found that Capsulotomy was done on 21.01.2014 and thereafter complainant visited the hospital on 11.03.2014 and that matter of Capsulotomy done by Nav Jyoti Eye & Laser Centre and it was suppressed by the complainant on the date of visit of ESI Hospital on 11.04.2014 and on 11.04.2014 when the doctors of ESI Hospital examined him, they found that he was well and fit for duty and doctors advised him to continue drops etc. Thereafter complainant never visited ESI Hospital, Sealdah.
Practically in this case Ld. Lawyer for the op tried to convince that admitted position is that cataract was operated by the ESI Hospital, Sealdah and that operation was done on 07.12.2013 and that cataract operation was under LA and after 07.12.2013 Capsulotomy was done on 21.01.2014. But prior to 21.01.2014 as and when complainant went to ESI Hospital, Sealdah but ESI Hospital, Sealdah checked his eye, gave him medicine and further direction and never he was refused by doctor of ESI Hospital, Sealdah which is evident from the prescription of ESI Hospital, Sealdah and discharge summary etc.
Now the only question is whether in respect of cataract eye operation done by the op on 07.12.2013 and after discharge of the complainant from the ESI Hospital, Sealdah on 12.12.2013 whether ops neglected and refused to entertain him properly and whether op failed to give after post-operative care to him and another question is that whether there is any defect or deficiency in respect of the first operation done by the ops on 07.12.2013 and another question is whether op failed to give post-operative care properly and Capsulotomy was required after operation.
On proper consideration of the argument of the Ld. Lawyer of the complainant, it is clear that complainant has tried to convince that due to ESI doctors’ failure and negligence and deficiency at the time of cataract operation on 07.12.2013 further operation was required which was done by Nav Jyoti Eye & Laser Centre on 21.01.2014 that means at the time of cataract operation there was deficiency for which further operation is required which was not at all properly diagnosed by the ops for which complainant was going to lose his eye and if in time complainant would not go to the said Nav Jyoti Eye & Laser Centre, in that case for the negligence and deficiency on the part of the op, complainant shall have to lose his eyes forever.
But at this stage this Forum asked the Ld. Lawyer for the op whether there was any opinion from any corner that Inter Ocular Lens (IOL) implant as done by the op on 07.12.2013 was at all defective and that operation was not at par medical skill and what is the reason for Capsulotomy. But the Ld. Lawyer failed to give any satisfactory explanation or any medical thought in this regard. So, this Forum collected the theorization of IOL implant which is the most scientific and modern operation for cataract and also the theology of modern technique of Capsulotomy after collecting it from World famous Journal of Cataract Surgery of America and England. So, before deciding the present consumer dispute and allegation of negligence on the part of the ops’ doctor, we must have to ventilate the total modern cataract surgery and the need of Capsulotomy and when it is required.
In fact in modern operation for cataract, the lens Capsule is usually not removed after implantation of IOL and the most common forms of cataract surgery remove nearly all of the Crystalline lens but do not remove the crystalline lens capsule (or the outer ‘bag’ layer of the crystalline lens) and crystalline lens capsule is retained and used to contain and position the Intraocular Lens Implant (IOL). In fact as per medical science months or years after the cataract operation, the lens capsule can become opaque in about 30 percent of the eyes. So before the advent of laser surgery a tiny knife called cystotome was used to cut a hole in the centre of lens capsule, thus providing a clear path for light rays to reach retina. This procedure thus reduces the opacity of the lens of the eye and currently this procedure is replace by YAG laser capsulotomy.
Posterior capsulotomy is a laser surgical procedure which is sometimes necessary to clear vision after cataract surgery. But during cataract surgery, the cloudy lens inside the eye is removed and replaced with a clear artificial lens implant and the cataract is surrounded by a clear cellophane-like wrapping and during cataract surgery, the front cellophane wrapping is removed. Then the cataract is removed and the implant placed and the back cellophane wrapping (known as the posterior capsule) remains intact. In some people, months or even years after cataract surgery, this clear cellophane membrane becomes cloudy and subsequently laser treatment is done to restore vision. The said capsulotomy is laser treatment involves two minute procedure in which a laser is used to create an opening in the clouded membrane. A laser is a focused beam of light and the procedure is completely painless and is completed with numbing eye drops. There are no eye drops to use after the procedure and most patients resume all normal activity immediately and most patients notice an improvement in vision within the first day or two.
Considering this medical theorization we are confirmed that capsulotomy is a type of surgery in which an incision made into the capsule of crystalline lens of the eye and fact remains that both side of the IOL there are two capsules and capsule are used to contain and position of lens. Further considering the present cataract operation as done by the op, We are confirmed that cataract operation was done rightly and IOL Implant was made and as per medical science and there was no ground to remove the crystalline lens capsule or the outer bag layer of the crystalline lens and as per medical science months or years after the cataract operation, the lens capsule can become opaque in about 30 percent of the eyes when this capsule can be required to be opening in the cloudy membranes. By a laser focused beam of light it is necessary to plain vision after cataract surgery as per modern operation for cataract or cataract surgery, the cloudy lens inside the eye is removed and then the cataract is removed and the implantation is raised but the laser cellophane is known as posterior capsule and wrapping remains intact and in some people months or even years after cataract surgery, this clear cellophane membrane becomes cloudy. So, laser treatment is done to restore vision.
So, considering all the above fact and also considering the fact of IOL for cataract surgery of the complainant on 07.12.2013 and further considering the prescription issued by the ops submitted by the complainant, it is clear that complainant lastly visited the ops’ Hospital on 11.04.2014 and before he went on 27.12.2013. Thereafter on 10.01.2014 and 11.01.2014 and 11.04.2014 ESI Doctors found that his eye sight was okay and he was well, fit for duty and further found that eye sight was okay and there was no problem.
But fact remains that in the meantime complainant on 21.01.2014 at Nav Jyoti Eye & Laser Centre managed to take treatment for capsulotomy but that was not disclosed by the ops which is evident from the prescription of the ESI Hospital.
Another factor is that as per medical science in between 07.12.2013 to 24.01.2014 there was no necessity of any capsulotomy as per medical science. Another factor is that complainant after operation held on 07.12.2014 time to time was examined by the doctors of the op hospital and progress was found correct and proper. Further fact is that there is no such information that capsulotomy must be done along with cataract surgery.
So, considering all the above fact and materials and also the theorization of modern cataract surgery and lens implant theorization and subsequent months or years together after cataract operation in some cases capsulotomy is required. But same is for two minutes procedure to create an opening in a cloudy membranes. But as per medical service cataract surgery the crystalline used to contain and position the IOL lens is there and this procedure is providing a clear path for light rays to reach retina and it was previously called crystotomy and no doubt the present procedure is called laser capsulotomy.
So, considering that fact it is clear that in respect of cataract operation done by the op, there was no negligence deficiency on the part of the ops. Fact remains that after cataract operation he caused other eye specialist which is evidence from the ESI and till 11.04.2014 there was no complaint before op by the complainant that he did not regain his eye sight later till 11.04.2014 but ESI Sealdah issued certificate to that effect that he was doing well that means he regained his eye sight, he is fit for join. But fact remains that in the meantime at Gorakhpur, Nav Jyoti Eye & Laser Centre complainant managed to get a caplsulotomy and that was not disclosed by the complainant to the ESI Hospital, Sealdah up to 11.04.2014.
So, it is clear that for some reason or otherwise being misguided by some other persons they went at Goraphpur said eye centre and that doctor did capsulotomy. But that was not required at that stage as per medical science in any case. Because Crystalline Cloudy was lens of the crystalline lens is required to be retained and used to see the condition, the position of IOL and until and unless lens capsulotomy became opaque, there is no need of procedure of capsulotomy but in this case as per medical science, it is found that it may create further trouble after capuslotomy within short period. In fact in the capuslotomy there are certain type of medicine discharged for protecting the said lens. Anyhow complainant failed to rely upon the treatment of the ops and suppressing the entire fact to the ops about operation of capsulotomy held on 21.01.2014 got all medical aid day to day up to 11.04.2014 and thereafter took fit certificate from the op and thereafter he joined.
So, considering the medical journal, the procedure of capsulotomy and the initial implant of IOL modern cataract surgery done by the op. We are convinced to hold that ops applied their modern skill for cataract eye operation of the complainant properly and as per world adopted medical surgery and procedure. The entire procedure of cataract surgery was correct as per medical surgery procedure in all respect and truth is that after operation complainant eye was restored which is evident from the prescription as produced by the complainant issued by the op.
Further considering the entire medical theorization of modern cataract surgery and capsulotomy we have gathered that after cataract operation (IOL) it is the duty of the patient to maintain certain procedure for proper recover from pain etc. But anyhow it has become a practice of the patient not to follow such advice and for which some problem is faced by the patient and in the present case it is found that just after operation complainant began to move from one doctor’s door to another doctor’s door, may be for some pain and all the doctors advised for operation after operation. But after considering the theorization from world renowned medical cataract surgery, medical books, Eye institute of America and different eye institutes of England we have gathered that capsulotomy should not be done forthwith but that was done by the complainant 21.01.2014 though cataract operation was done on 07.12.2013. So we are very sure that in future there is further chance of further problem of the complainant in respect of eye.
In the present case it is proved that for lack of knowledge, this complaint was filed and nowadays it has become a practice anyhow to appear before the Forum to get compensation when second operation is found established in any case. But it is not any fresh operation. But it is continuation of cataract eye operation and it is required if doctor who operated it thinks it fit and satisfied that capsulotomy operation is required. Op did not find any such reason within that period when complainant was treated by them all the days as and when complainant wanted any advice or for any problem and from the complainant’s own document it is proved that ESI issued fit certificate to join duty on 11.04.2014 and complainant at that time was found having good eye sight and there was no problem in the eye sight.
Fact remains that after cataract operation if any problem is found, invariably there are so many private eye nursing home who are hankering for such operation. So that they can apply capsulotomy but operation is completed within two minutes without any hazard, without implantation but by making a hole in the eye and are collecting huge treatment cost. But the poor illiterate persons having no knowledge of medical science as consumer roams from one door to another nursing home’s door as per advice of the outsiders and nursing home to make benefit takes such procedure of capsulotomy and then the consumer appears before the Forum with such allegation that further operation was done and then he got sight after cataract operation. But such a plea is proved a false allegation against any doctor. But in the present case it is proved that it is false allegation against the doctors and op because there was no medical negligence and deficiency on the part of the op. After operation complainant got his eye sight. Actually there was some problem being advised by some greedy doctor he was carried away at Gorakhpur for capsulotomy. But it was suppressed to the ESI hospital and further he visited ESI Hospital as per their advice and availed of a fit certificate from the Hospital on 11.04.2014 but long prior to that on 21.01.2014 that capsulotomy was done at Gorakhpur. But there was no need at that time as per medical science.
In the light of the above observation we are convinced to hold that the entire allegation is false and fabricated, without any foundation against the op for which this complaint fails.
Hence, it is
ORDERED
That the complaint be and the same is dismissed on contest against the ops with penal cost of Rs. 5,000.- and this penal cost shall be paid by the complainant to this Forum within 15 days failing which penal action shall be started for realization of the said penal cost for which the complainant shall be liable imposed further penalty.
