DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 31^st day of December, 2009.

Present : Smt. Seena.H (President)

: Smt. Preetha.G. Nair (Member)

: Smt. Bhanumathi.A.K. (Member)

C.C.No.142/2006

M.K. Ganapathy Achari,

S/o. Kuttappan Achari,

2/281, 'Niranjana' Bungalow Parambu Colony,

Near KTC, Kanjikode,

Palakkad District. - Complainant

( Adv. M.R. Manikandan)

V/s

1. M/s.Ahalya Foundation Eye Hospital (P) Ltd,

Elappully,

Palakkad Taluk, Palakkad,

Rep by Managing Director.

(Adv. V.K. Venugopalan)

2. Dr. Nareshkumar Yadav,

M/s.Ahalya Foundation Eye Hospital (P) Ltd,

Malamettukadu,

Elapully, Palakkad Taluk,

Palakkad District.

(Adv. V.K. Venugopalan) - Opposite parties

O R D E R

By Smt. Seena.H, President

The complainant approached the 1^st opposite party on 12/09/2005 with the complaint of visual disability on the right eye. On clinical examination he was found to have partial Rhegmetogenous Retinal Detachment (tear of retina) on the right eye and Lattice Depeacration on his left eye. Complainant was adviced by the opposite parties to undergo scleral Buckling Surgery (RE) and laser treatment (left eye). The surgery was fixed on 13/09/2005 itself. Complainant was admitted in the 1^st opposite party hospital. Surgery was done by the 2^nd opposite party on the same day itself and was discharged on 14/09/2005. At the time of discharge, complainant was directed to be present for follow up check up on 10/12/2005. But after a few days from the date of surgery complainant felt pain in his right eye wherein surgery was conducted. Complainant visited 2^nd opposite party as many as five times complaining severe pain. But every time 2^nd opposite party tried to console the

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complainant saying everything is right with the complainant's right eye and no further treatment is necessary. As the pain suffered was unbearable complainant chose to visit Sankara Nethralaya Hospital, Chennai of his own on 13/10/2005 and was accordingly referred to the hospital by the opposite party. On 13/10/2005 itself, complainant was admitted as inpatient at Sankara Nethralaya, Chennai. On certain laboratory investigations it was found that there was fungal infections on the right eye of the complainant which necessitated a surgery again. Buckel removal surgery was conducted on 15/10/2005. Thereafter complainant continued treatment in Sankara Nethralaya Hospital, Chennai and also with the 1^st opposite party's hospital, as directed by the latter for the convenience of the complainant. Complainant had to spend a sum of Rs.2,00,000/- for his treatment so far. According to the complainant the fungus infection occurred on the right eye was due to the gross negligence on the part of the opposite parties, especially 2^nd opposite party. Surgery and treatment could have been avoided if the opposite parties has done the surgery and laser properly and in good hygienic condition. Subsequent pain on the complainant right eye will clearly reveals the fact that the opposite parties failed to perform the surgery properly and in good hygienic conditions.

According to the complainant act and conduct of opposite parties in the course of the surgery and subsequent treatments clearly amounts to deficiency in service. Complainant issued a lawyer notice to the opposite parties for which 1^st opposite party alone replied refusing the allegations. Hence the complaint. The complainant claims an amount of Rs.2,50,000/- as compensation.

The contentions set forth by the opposite parties are as follows. Complainant visited the hospital on 12/09/2005 with the complaint of decreased vision inferior half right eye for 2 days and complaint of floaters right eye. After due clinical examinations and investigations it was diagnosed as partial Rhegmetogenous Retinal Detachment (tear of retina) on right eye and Lattice Depeacration on his left eye. The problem of the right eye required a emergency surgery as the central part of the retina was still attached. Once the main centre part of retina gets detached the vision does not become normal even after successful retinal surgery. Taking this facts into consideration the patient was advised

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to undergo Scleral Buckling Surgery right eye. The left eye had retinal weak spots known as lattice Degeneration which if left untreated can lead to retinal detachment. To prevent retinal detachment the patient was advised laser photo coagulation around the weak spots which is an outpatient procedure and not an operation. The patient opted to get the right eye surgery done on 13/09/2005.

The patient was explained about the surgery and after making them fully understand about the surgery and its pros and cons and on getting written consent surgery was fixed on 13/09/2005. Complainant was discharged without any complaints on 14/09/2005. The surgery on the right eye was done to re-attach the detached retina by an inert silicone tire sutured on the sclera approximating the location of the break. The patient was given proper post operative instructions. According to the 2^nd opposite party, complainant was adviced to come for follow up one week after surgery and not on 12/10/2005 as stated in the complaint. The allegations in the complaint that the follow up was after one month is untrue and the case file and the discharge card will reveal the same.

On 21/09/2005, the complainant reported had reported complaint of floaters and occasional pain. He was prescribed with antifungal drops in addition to the antibiotic drops. On 28/09/2005 again the patient has reported occasional pain and he was prescribed antibiotic ointments and antifungal drops and pain killers. On 04/10/2005 he has reported complaint of pain again and antibiotic medicines were changed and he was adviced to continue other antifungal medicines. On 12/10/2005 he reported pain again and was referred to Sankara Nethralaya Hospital at Chennai.

Infection is a known complication in ophthalmic surgery. The type of infection reported can occur in 3 out of 1000 patients as per accepted international standards. It is not due to the lack of hygiene in the hospital/operation theatre or due to the negligence on the part of the Doctor or the staff treated him. The operation theater and the pre-operative room are sterilized using up to date technology. The hospital and its equipments are very new and except eye care no other diseases are entertained.

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Further 2^nd opposite party is a fellowship trained vitrea-retina consultant with 10 years of experience. Patient has retrieved vision to the right eye after the surgery. Post-operative pain, redness, watering etc are common occurrences after retinal surgeries, as these are major surgeries and cause profound amount of tissues swelling and inflammation. This pain and redness slowly subsides on using eye medications. The patient was properly seen and examined in all visits. As the pain continued for more days than expected the opposite party adviced the patient about second consultation. The 2^nd opposite party has personally contacted Dr. Pramod Bhende at Sankara Nethralaya Hospital, Chennai . The say of the complainant that he was not referred to Sankara Nethralaya Hospital, Chennai, is false. Referring of patient to a higher center for the well being of the patient does not amounts to deficiency in service.

According to the opposite parties there is no deficiency in service on their part.

Complainant and opposite parties filed their respective affidavits. Exhibit A1 to A4 marked on the side of the complainant and Exhibit B1 series marked on the side of the opposite party.

Issues for consideration are:

1. Whether there is negligence on the part of the opposite parties?

2. If so, what is the relief and costs?

Issue No.1

The main allegation leveled against the opposite party as gathered from the complaint is that the fungus infection occurred on the right eye of the complainant. After surgery is due to the negligence of the opposite parties in conducting the surgery in unhygienic conditions. Further whenever the complainant approached the 2^nd opposite party complaining pain in his right eye, 2^nd opposite party tried to console stating there is nothing to worry with the right eye. Later on he was referred on a higher centre on at the request of the complainant himself.

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The opposite parties on the other hand contended that the hospital was inaugurated in the month of March 2005 and operation theaters and pre-operation room are sterilized using up to date technology. More over except eye care , no other diseases are entertained. According to opposite party, infection is a known complication in ophthalmic surgery. The type of infection reported can occur in 3 out of 1000 patients as per accepted international standards. It is not due to the lack of hygiene in the hospital/operation theatre or due to the negligence on the part of the Doctor or the staff treated

We have gone through the relevant documents on record and heard the counsels both and parties in detail.

It is born out from Exhibit B1 series which is the case sheet of the complainant and admitted by both parties that the surgery was conducted on 13/09/2005 and complainant was discharged on 14/09/2005. Case sheet clearly reveals the fact that the complainant was adviced to come on next Tuesday. So the say of the complainant that he was asked to come for follow up checkup after a month turn out to be false. The uncommon complications/side effects of scleral Buckling Surgery viz, change in refractive error, complications associated while draining sub retinal fluid and buckle explosure and infection are made known to patients and willingness of the complainant for surgery by way of consent forms signed by the complainant is also marked as Exhibit B1 series. Further the referal letter to Sankara Nethralaya Hospital, Chennai is seen to be referred by the opposite parties themselves. 2^nd opposite party has prescribed antibiotic and antifungal drops and pain killers at the time of the subsequent visits by the complainant. Complainant has no case that the treatment adopted is wrong as medicines prescribed is not proper . Complainant has also no case that his vision was in any way adversely affected by the surgery or by the treatment adopted by the opposite parties.

Going through the evidence adduced by the complainant regarding unhygienic conditions in the operation theatre, it can be seen that there is absolutely no evidence regarding this aspect. Even though complainant has taken steps for cross examination of 2^nd opposite party, 2^nd opposite party never appeared before the forum. But 1^st opposite party while

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cross examining has deposed that the treating Doctor has nothing to do with the fungus

infection. Complainant has not produced any medical records not even the discharge card from Sankara Nethralaya Hospital, Chennai. Complainant has not even taken the pain for examinations of any expert witness to prove deficiency on the part of 2^nd opposite party. 1^st opposite party while cross examining has also not deposed anything which throw life on the allegations of the complainant that the theatre was in an unhygienic condition.

In view of the above facts and circumstances of the case, we are of the view that complainant miserably failed to prove a case in his favour. In the result complaint dismissed. No order as to cost.

Pronounced in the open court on this the 31^st day of December, 2009.

PRESIDENT (SD)

MEMBER (SD)

MEMBER (SD)

APPENDIX

Witness examined on the side of Complainant

Nil

Witness examined on the side of Opposite party

Dr. Anup Chirayath examined as DW1

Exhibits marked on the side of the complainant

1. Ext. A1 series – Lawyer notice dated 13/09/2006

2. Ext. A2 – Lawyer notice dated 3/10/2006

3. Ext. A3 series – Pharmacy cash memo

4. Ext. A4 – Copy of referring letter addresses to Dr. Lingam Gopal of Chennai

Exhibits marked on the side of the Opposite Party

1. Ext. B1 series – Out patient record of Ahalya foundation Eye care hospital

Forums Exhibits

Nil