Tamil Nadu

North Chennai

CC/13/2021

Mr.Mohammed Tajudeen - Complainant(s)

Versus

AN-Noor Eye Hospital Rep by Dr.Khaleel Ahimed - Opp.Party(s)

A.Sikkandar

29 Nov 2023

ORDER

Complaint presented on  :12.10.2020    Date of disposal            :29.11.2023

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

PRESENT: THIRU. G. VINOBHA, M.A., B.L.           : PRESIDENT

                                         TMT. KAVITHA KANNAN, M.E.,         : MEMBER-I

                                         THIRU V. RAMAMURTHY, B.A., B.L., PGDLA : MEMBER-II

 

C.C. No.13/2018

 

DATED THIS WEDNESDAY THE 29^th  DAY OF NOVEMBER 2023

 

Mr.Mohammed Tajudeen,

Son of Mr.Ansar Basha

Door No.1524, 108^th street,

Mathur MMDA, 3^rd Main Road,

Chennai-600 068.                                                           .. Complainant.                                                                

 

 

..Vs..

 

M/s.AN-NOOR Eye Hospital,

Rep by Dr.Khaleel Ahmed MS, FRCS,

Medical Director and Chief Consultant,

Periamet Centre, No.57,Vepery High Road,

Chennai-600 003.

                                                                                               ...  Opposite party.

 

 

Counsel for the complainant                      : M/s.A.Sikkandar, and R.Venkatraman

Counsel for   opposite party                     : M/s.AAV Partners

 

 

 

 

ORDER

THIRU. G. VINOBHA, M.A., B.L., PRESIDENT

This complaint has been filed by the complainant against the opposite party under section 35 of the Consumer Protection Act, 2019 prays to directing the Opposite party to repay a sum of Rs.70,000/- being the cost incurred by the complainant at the opposite party hospital, together with interest at 24%p.a on the said amount from 22.04.2017,till the date of actual payment and to pay and settle a sum of Rs.45,000/- being the cost of the corrective surgery performed by M/s.Arvind Eye Hospital Pondicherry together with interest at 24%p.a on the said amount from 13.10.2017 till the date of actual payment and to pay a sum of Rs.45,00,000/- towards compensation for the professional misconduct, unethical practice, deficiency in service, unfair trade practice and mental agony caused to the complainant.

 

1.THE COMPLAINT IN BRIEF:

 The complainant states that on 19.04.2017 he suffered an injury in his left eye as he was hit by sporting-hook while trying to remove certain luggage from his two-wheeler. Since his vision got blurred and inflammation was spotted in his left eye soon after the above accident the complainant had instantly approached the government hospital at Egmore for first aid. The complainant on 22.04.2017 had visited the AN-NOOR eye hospital the opposite herein for consultation and treatment. The complainant was first attended to by Dr.Khaleel Ahmed the medical Director and Chief Consultant of the opposite party. After preliminary diagnosis the opposite party had advised two stages of examination. The complainant states that the 1^st stage known as ‘Visual Acuity’ was conducted on the complainant to check the status of the vision in both his eyes. The complainant states that the second stage of examination known as ‘Slit Lamp Method’ was conducted by the opposite party in his left eye, on 27.04.2017 the opposite party’s Retina Consultant had diagnosed severe “Mascula Edema” in left eye of the complainant. On enquiries made by the complainant the said retina consultant had explained the same to be a formation of fluid in the centre of the retina” which fluid accumulation causes the “Mascula” to swell and thicken having a potential to further distort the vision in the complainant’s left eye in the near future. During September 2017 the Ophthalmologists of the opposite party carried out a diagnosis and advised the complainant to undergo an emergency surgery to treat his left eye and for restoring vision in it. The details for the procedures involved in the said surgery was not at all explained to the complainant by anyone from the opposite party. The complainant states that on 14.10.2017 M/s.Arvind Eye hospital had performed a surgery for “Vitrectomy” for treating Retinal Detachment and Mascular Holes, “Intraocular Lens Removal” for better vision and “Wound Suturing: for treating the Distorted Iris and Pupil. On 11.11.2017 the complainant underwent another surgery for “Retinal Detachment” After the above surgeries, the vision of the complainant slightly improved however the doctors at M/s.Arvind eye hospital has confirmed that the partial impairment can never be treated due to the belated suturing of distorted Iris and Pupil which procedure ought to have been performed by the opposite party when the complainant was an in-patient with the opposite party. For the corrective surgery performed by M/s.Arvind Eye Hospital and for medicines, travel and other incidental matters, the complainant had spent about Rs.45,000/- The complainant submits that in the Discharge summary dated 06.10.2017 the opposite party herein had clearly stated the complainant’s vision on showed distorted Iris and pupil and phacodonesis and cataract. However the opposite party had performed the cataract surgery alone leaving the damaged Iris and pupil and the dislocation of the natural lens unattended thereby caused the above damage to the eye of the complainant. It is pertinent to point out that the opposite party had diagnosed the complainant with “Distorted Iris and Pupil” but he was not treated for the same even after passage of nearly 5 months from the date of admission into the opposite party hospital for the reasons best known to it. On the other hand the opposite party had performed an unwarranted cataract extraction in an unprofessional and unethical manner. The complainant also states the improper performance of surgery which was done without any care or caution resulting in displacement of Intraocular Lens, has further aggravated the defects in his left eye. It could be observed that the said cataract surgery was carried out by the opposite party either by trainees or students without proper certification or experience the complainant state that opposite party negligence in performing the cataract surgery by giving a clear-go by in addressing the core issue/complaint of the opposite party, the rights of the patient and is punishable as ‘deficiency in service’ under section 21 of the consumer protection Act, 2019. The opposite party and each and every doctor involved amounts to unfair trade practice under section 2(47) of the consumer protection act 2019 the opposite party has not only subjected the complainant to physical and mental trauma, but also was directly responsible for his loss of earnings at Rs.20,000/- per month from 22.04.2017 which loss continues even today and hence the complaint.

 

2. WRITTEN VERSION OF OPPOSITE PARTY IN BRIEF:

The opposite parties states that the complainant had prior to visiting this opposite party had consulted numerous physicians/ophthalmologists who had categorically opined it difficult to retrieve the vision. On examining the eyes of the complainant it was evident that the complainant’s eye had been damaged severely and had advised him to take a B-scan of the eye to ascertain the condition of the eye. On perusal of the report it was evident that the complainant had phacodenesis (vibration of the lens within the eye) traumatic iris (Inflammation caused due to trauma to the eye) with severe macular edema (Mascular edema is the build-up of fluid in the macula, an area in the center of the retina) for which medication had been prescribed by the opposite party. The complainant had been explained in detail about the guarded prognosis of the treatment (that the visual recovery chances are very less) since the left eye had no vision and numerous doctors had already opined that it was not possible to recover the vision this opposite party had also explained the same prognosis. However as the complainant insisted that this opposite party can in anyway try to perform any surgery or treatment even it had a very minor chance of success to go ahead with the same. The complainant had been seen by retina consultant Prof.Dr.Raja Shekar MS and he was advised given Inj.Ozurdex in the eye and procedure was done on 11.07.2017. On 26.09.2017 a cataract surgery with Anterior Chamber Intraocular Lens Placement Technique was performed under aseptic conditions and the surgery was uneventful. The opposite party had advised the complainant to undergo a IOL extraction which was not at all accepted by the complainant and he never came back to this opposite party. Thereafter the patient came back to the opposite party on 18.05.2017 with complaints of pain in the eye under sun light and he had been examined by Dr.Raja Shekar. It had been advised to the patient that the cataract surgery with secondary IOL after the Iris subsides. The patient came back to the opposite party on 12.06.2017 and again complained that there was no improvement in the left eye therefore a Slit Lamp examination was conducted which showed absence of Iris rim, Zonules where seen, minimum vitreous, Phacodenesis and fundus macula edema. On 26.09.2017, the cataract surgery was conducted and during the surgery the CTR was lost and IOL was dislocated then wound extended and again the IOL was removed then AC IOL was placed and sutured. On 03.10.2017 the complainant came back for review and had been examined by the opposite party and referred to Dr.Manoj for removal of CTR and ACIOL. The complainant had refused for further treatment with the opposite party and hence we referred him to a higher centre. However he never came back to this opposite party. Moreover the complainant had failed to understand that he had approached the opposite party after consulting various doctors as admitted by him. The opposite party had tried his best to retrieve the eye sight of the complainant. In the instant case the opposite party possessed the required skill and had also administered timely treatment using the said skills. Since the opposite party have not been deficient in their services as there is no cause of action for the instant complaint and the opposite party is not liable to pay any sum of money.

3. POINTS FOR CONSIDERATION:

1. Whether there is any deficiency in service and unfair trade practice on the part of the opposite party as alleged in the complaint?

2. Whether the complainant is entitled to the reliefs prayed in the complaint. If, so to what extent?

 

The complainant had filed proof affidavit, written arguments and documents Ex.A1 to Ex.A14 were marked on his side.The opposite party had filed proof affidavit, written arguments and documents Ex.B1 and B2 were marked

 Point No.1:-

 The fact that the complainant sustained injury on 19.04.2017 in his left eye by a sporting hook for which he took initial treatment at the government eye hospital at Egmore and then he has approached the opposite party hospital for consultation and treatment on 22.04.2017 is not in dispute between the parties. But according to the complainant he was diagnosed based on B-scan report that he had phacodenesis, traumatic Iris with severe mascular edema which means that there was vibration of lens within his eye and inflammation caused to his Iris and formation of fluid in the centre of retina for which the opposite party had prescribed medicines and further according to the complainant the result of the said scan showed Grossly Clear Vitreous and retina attached and he was advised that if mascular edema was left untreated it can lead to total loss of vision in the left eye hence he was given Ozurdex Intravitreal Injection which caused to reduce mascular edema with his vision improving to see within one meter but it was not effective in restoring his vision of the left eye and further contended that in September 2017 the opposite party advised the complainant to undergo a surgery for restoring his vision and as noticed in the discharge summary of the opposite party that he underwent an operation for cataract extraction through anterior chamber intraocular lens placement technique but on the next day on examination it was found that the intraocular lens was dislocated in his eye due to improper placement of the lens during the alleged cataract surgery for which the opposite party offered to rectify the defect by performing a surgery free of cost and thereby admitted the surgical misadventure and hence the complainant contended that he opted to get discharged and admitted in Aravind eye hospital in Pondicherry were he underwent a surgery for Vitrectomy on 14.10.2017 and another surgery for retinal detachment on 11.11.2017 after which his vision slightly improved but he was told that due to belated suturing of distorted Iris and pupil  which ought to have been performed by the opposite party earlier his vision could not be retrieve fully and further contended that the alleged cataract surgery was unwarranted and it was done in a unprofessional manner resulting in displacement of intraocular lens and the said cataract surgery was done without informing the complainant and therefore alleged deficiency in service and unfair trade practice of the opposite party.

          But on the other hand the opposite party contended the complainant suppressed his taking treatment at government hospital egmore for about 4 days and further alleged that he has approached the opposite party after consulting many ophthalmologists who opined that it is difficult to retrieve to his vision and further stated that he was diagnosed with phacodenesis, traumatic Iris with severe mascular edema which means that there was vibration of lens within his eye and inflammation caused to his Iris and formation of fluid in the centre of retina for which the opposite party had prescribed medicines and he was seen by the retinal consultation Dr.Rajasekar MS and he was given proper injection and medication and initially the complainant was not willing to take Ozurdex Intravitreal Injection but later expressed his willingness and hence it was given to him on 17.06.2017 and further contended that on 26.09.2017 a cataract surgery with anterior chamber Intraocular lens placement technique was performed and on the next date he complaint defective vision and on examination it was found that ACIOL was dislocated and he was advised to take certain medicines and on 03.10.2017 he came back for review and he was examine by Dr.Manoj who advised for removal of CTR and ACIOL for which the complainant refused and hence he was refused to higher centre and thereafter never came back to opposite party and denied the allegation that the cataract surgery was unwarranted and done in a unprofessional manner without informing the consequences of the same and further contended that there was no negligence on the part of the doctors of the opposite party in treating the complainant and denied deficiency in service and unfair trade practice.

          It is found from Ex.A1 that on the complainant approached the opposite party only after 4 days of sustaining blunt injury in his left eye and it is further found that the patient came for 2^nd opinion and on examination it was found that he was having Phacodenesis and blood clots in his left eye with severe traumatic Iris and lensodenesis and a B-scan was taken in the opposite party hospital on 27.04.2017 where it was found the vitreous grossly clear and retina attached and he was having severe mascular edema and it is found from Ex.A2 that the patient thereafter approached the opposite party only on 18.05.2017 with difficulties and feeling pain in looking at sunlight and he was given Ozurdex Injection on 17.06.2017 it was found on 12.07.2017 that LE implant seem in people area and diagnosed with Early PSC it is further found on 01.08.2017 when he came for review after 20 days that he was having Rosette Cataract and Iridodenesis and Lensodenesis it is found from the discharge summary issued by the opposite party hospital which is marked as Ex.A8 that a cataract extraction ACIOL was done on 26.09.2017 and on the next date IOL was displaced and an IOL and CTR extraction was planned for which patient was not willing and he wanted to go another centre which will go to show that the complainant refused to undergo another surgery suggested by the opposite party hospital for IOL and CTR extraction it is further found that before the surgery on 26.09.2017 necessary consent was obtained from the complainant to undergo cataract surgery by explaining the consequences of the same and the said consent form is marked as Ex.A6 and therefore the contention of the complainant that he was not informed about the details of the surgery by the opposite party is not acceptable it is found from the medical literature filed by the opposite party that traumatic Rosette Cataract present in the form of petaloid/rosette shaped under typically seen in the patients who have sustained blunt or penetrating injuries to the eye and further according to the opposite party since the Iris was damaged to the complainant it does not hold the lens properly which caused the post operative dislocation of the lens which is not due to the negligence in performing the surgery as alleged by the complainant. There is much force in the argument advanced by the opposite party as stated above. Merely because the complainant underwent a surgery for Vitrectomy and retinal detachment on 14.10.2017 and 11.11.2017 at Arvind eye hospital the same will not amount to a corrective surgery which was alleged to have been done by the opposite party in an improper way but on the other hand it is found from the medical literature submitted by the opposite party that the retinal detachment may occur even after a few months after the sustaining of blunt injury to a person and therefore the complainant contention that the retinal detachment was unattended by the opposite party when he was examined earlier does not holds good. It is found from the endorsement of the doctor in the case diary dated 03.10.2017 that the patient refused to undergo ACIOL removal with CTR removal and he wanted to go to higher centre and it is further found from Ex.A9 discharge summary issued by Arvind eye hospital that a surgery was conducted on 11.11.2017 for re Retinal Detachment for the defective left vision and it is further found that in the very same hospital another Vitrectomy surgery was done on 14.10.2017 and no where in the said discharge summary it has been stated that it is a corrective surgery in order to rectify the defects of earlier surgery done by the opposite party. Though the complainant in the complaint contended that the surgery on 26.09.2017 was performed by Trainees and students in the opposite party hospital there is no proof for the same but on the other hand the discharge summary and the various entries by the doctor in the case sheet as well as in the discharge summary of the opposite party which were marked as B1 and B2 will prove the fact that the said surgery was done by well qualified doctors by following the proper medical procedure and hence the complainant’s contention of negligence in performing the surgeries without any valid proof or material evidence. It is found from the entry dated 12.07.2017 by Dr.Rajasekar that the complainant was having posterior sub cappsular cataract which requires a surgery and therefore the allegation of the complainant that the cataract surgery was unwarranted is not acceptable. The counsel for the opposite party by relying upon a decision reported in CPJ 2007 Vidhya Bhushan Vs Madhan Auladhesit Institute by NCDRC contended that negligence in performing operation and alleging that the operation was unplanned and done by OP in a wrong way has to be proved by medical opinion of a any expert and in the present complaint there is no expert opinion filed by the complainant to substainshed is claim that the surgery was performed by the opposite party in a defective and improper manner. In the reply notice which is marked as Ex.A12 it is stated by the opposite party that if the complainant agreed to undergo the ACIOL removal and CTR removal surgery as suggested by the opposite party doctor on 03.10.2017 the retinal detachment would not have occurred and further it is stated that if he has agreed for the said procedure the opposite party doctor would have effected sutures in the Iris and pupil which would have prevented the complainant from taking further treatment by spending Rs.45,000/- at Arvind eye hospital which is found to be an acceptable and valid reasons to disprove the alleged negligence upon the opposite party as alleged in the complaint it is found from the documents filed from both the parties that the surgery on 26.09.2017 was performed by a senior most doctor and qualified doctor of the opposite party hospital by following the proper procedure and it is further found that the patient who are discharged at his request on 03.10.2017 from the opposite party hospital has not taken any treatment till 13.10.2017 which aggrevated the loss of vision which purely due to the negligence of the complainant in not approaching the doctors in time. It has been held in various decisions rendered by the Hon’ble supreme court and national commission including Jacob Mathew vs Punjab and others that a professional may be held liable only if he was not possessed of the required skill which he professed to have possessed or he did not exercise the said skill with reasonable competence but in the present complaint the complainant failed to prove the aforesaid two factors which were essential to prove medical negligence and merely because a better or alternative treatment was also available so long as a doctor follows a practice acceptable to the medical profession no negligence can be alleged against the said doctor further the opposite party relied upon the decision reported in Harish kumar khurana vs joginder singh and others in civil appeal numbers 7380, 8118 and 6933 of 2009. Though it is alleged by the complainant that the dislocation of the lens is due to the defective performing of the operation by the opposite party there is no proof for the same further the complainant failed to prove that the opposite party left the damaged Iris and pupil unattended thereby causing damage to the eyes of the complainant his also not supported by any medical evidence or expert opinion since the opposite party has acted as per the medical code and procedure the same is not liable to pay the additional expenditure alleged to have been spend by the complainant in Aravind eye hospital and further the opposite party is not liable to refund the caused incurred by the complainant in the opposite party hospital as claimed in the complaint. For the foregoing reasons it is found that the complainant failed to prove the deficiency in service and unfair trade practice and medical negligence on the part of opposite party. Point No.1 is answered accordingly.

Point No.2:

         

Based on the findings given to the PointNo.1,since the complainant failed to prove the medical negligence and deficiency in service and unfair trade practice on the part of opposite party, hence  the complainant is not entitled for Rs.70,000 /- being the cost incurred by the complainant at the opposite party hospital and also not entitled for Rs.45,000/- towards the cost of surgery performed by arvindh eye hospital and  not entitled for compensation as deficiency in service as claimed in the complaint. Point No.2 is answered accordingly.

               

In the result the complaint is dismissed. No Cost

Dictated  by President to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 29^th November 2023

 

MEMBER I                                  MEMBER – II                           PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	22.04.2017	Outpatient Record issued by the opposite party to the complainant
Ex.A2	27.04.2017	Scan Examination Report of the complainant issued by the opposite party
Ex.A3	17.06.2017	Fee receipt issued by the opposite party (series)
Ex.A4	11.07.2017	Case sheet of the complainant issued by the opposite party
Ex.A5	12.09.2017	CT Scan Report
Ex.A6	29.09.2017	Certificate of fitness issued of the complainant issued by Mr.Ravindran and consent form to undergo cataract surgery
Ex.A7	30.09.2017	Scan Examination Report of the complainant issued by the opposite party
Ex.A8	06.10.2017	Discharge summary issued by the opposite party
Ex.A9	16.10.2017	Discharge summary issued by M/s.Aravind Eye Hospital
Ex.A10	16.10.2017	Fees Bills issued by M/s.Aravind Eye Hospital(series)
Ex.A11	02.01.2019	Legal Notice issued by the complainant
Ex.A12	31.01.2019	Reply Notice issued by the opposite party
Ex.A13	27.02.2019	Notice issued by the complainant
Ex.A14		Medical Bill series

 

LIST OF DOCUMENTS FILED BY

 

Ex.B1		Copy of Case sheet
Ex.B2		Copy of Discharge Summary

 

 

MEMBER – I                         MEMBER – II                       PRESIDENT