KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.206/09 & APPEAL NO.228/09
COMMON JUDGMENT DATED:16.05.2012
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
SHRI.M.K. ABDULLA SONA : MEMBER
APPEAL NO.206/09
Thankamma, Mohan Vihar,
Maruthoorkadavu, Kalady,
Karamana P.O., Thiruvananthapuram. : APPELLANT
(By Adv. D. Mohanan)
Vs
Aravind Eye Hospital and Post Graduate,
Institute of Ophtalmology,
Represented by its Director,
S.N. High Road, Thirunelveli – 627001. : RESPONDENT
(By Adv. G.S. Kalkura)
APPEAL NO.228/09
Aravind Eye Hospital and Post Graduate,
Institute of Ophtalmology,
Represented by its Director,
S.N. High Road, Thirunelveli – 627001. : APPELLANT
(By Adv. G.S. Kalkura)
Vs
Thankamma, Mohan Vihar,
Maruthoorkadavu, Kalady,
Karamana P.O., Thiruvananthapuram. : RESPONDENT
COMMON JUDGMENT
JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT
Appellant in Appeal-206/09 is the complainant in OP.343/03 in the file of CDRF, Thiruvananthapuram and the appellant in Appeal-228/09 is the hospital that is under orders to pay a sum of Rs.25,000/- as compensation and Rs.2000/- as cost to be paid within 2 months failing which with interest at 9%.
2. The complainant said to be a poor lady aged 65 years has alleged deficiency in service on the part of the opposite party hospital/Aravind Eye Hospital and Post Graduate Institute of Ophthalmology, Thirunelveli for having lost her vision to the left eye in consequence to the cataract surgery undergone at the opposite party hospital. The opposite party had conducted an eye camp at Thiruvananthapuram on 4.7.02 and the complainant who was examined was found to be having cataract for which she was advised to undergo an operation to the left eye. She was taken to the 1st opposite party hospital on 5.7.02 and intra ocular lens was implanted. She developed intense pain to the left eye soon after the surgery and underwent IP treatment at the hospital up to 16.7.02. At the time of discharge she was advised to continue medicines and directed to appear for review on 1.8.02. She did so. But it was found that she had total loss of vision to the left eye. It is alleged that the above was on account of the carelessness and negligence on the part of the doctors of the opposite party hospital.
3. The opposite party has filed version admitting that she was examined and surgery conducted as alleged. Her vision prior to surgery has only 6/24. All required investigations to be done prior to the surgery was done and surgery conducted on 5.7.02 and an intra ocular lens was also implanted. On the next day it was found that she had signs of endophthalmitis like lid edema, purulent discharge, corneal edema etc. It is denied that the infection was the result of the carelessness on the part of the opposite parties. On detecting the problem she was immediately examined by 2 other senior doctors. Conjunctival smear and vitreous tap was taken and microbiological evaluation done. Intravitreal vancomycin and amikacin were administered along with fortified tobramycine eye drop, fortified cephazoline eye drop; injection Cifran 200ml etc. The microbiology report showed bacillus species. Appropriate treatment continued till 16.7.02 and she was discharged as the infection was getting controlled. She was seen by all senior surgeons of Aravind Eye Hospital, Thirunelveli including Chief Medical Officer. Had she followed the advice of the doctors the infection would not have occurred. Hygienic habits like improper cleaning of hands before applying drops on the operated eye, and general hygiene of the patient were apparently lacking in the case of the complainant. Prior to operation the vision was 6/24 which is equivalent to loss of vision. The alleged negligence is emphatically denied.
4. The evidence adduced consisted of the testimony of PW1, DW1 and 2, Exts.P1 to P5 and C1.
5. The Forum has relied entirely on Ext.C1 report of the expert appointed by the Forum to examine the treatment records and furnish opinion as according to the Forum the expert report stood unchallenged. The expert was not examined.
6. Ext.C1 is the report submitted by Dr. P.S. Indrapal, M.S, D.O, Eye specialist. He has reported that on examining in detail the hospital records that the vision of the patient at the time was 6/18 both eyes (uncorrected vision with glasses). Further tests done at the hospital showed that the previous vision of 6/18 has improved to 6/12 and 6/9 in the left eye with appropriate glasses. It was a post operative infection in the operated eye. The expert has also stated that all possible measures that could have been taken seem to have been taken. Inspite of the same the condition was diagnosed as post operative endophthalmitis. It is also mentioned that the patient was discharged on 16.7.02 before eye had completely healed. The expert has observed that 6/18 vision is considered as fairly good vision and that a person with cataract will not usually have 6/18 vision and that it will always be much lower than that. Further people of around the same age as this patient will usually have some amount of diminished vision due to certain other age changes some of which can be corrected or improved with appropriate glasses. Further it is observed that the vision in the operated eye had improved to 6/12 and to 6/9 which is considered as good vision and that from the above finding it can be concluded that the patient had no cataract which required a cataract surgery at that time. The diminished vision was due to changes in refraction due to ageing and hence improvement with glasses was possible. The expert has also reported that no antibiotics have been used either locally in the eye or systemically (oral) prior to surgery. Use of antibiotics eye drops locally in the eye one or two days prior to the surgery as a practice is usually adopted before eye surgeries. This will take care to any micro organisms if at all present in the conjunctival sac. This can prevent exogenous infection (infection from external surroundings). Systemic antibiotics are also often used as a precaution before intra ocular surgeries (surgery done inside the eye ball). This can guard a possible exogenous as well as endogenous infection (infection from other sites within the body). He was also noted that the appropriate antibiotics and other medicines have been administered for post operative endophthalmitis. The expert was also reiterated that the patient was discharged before the eye had completely healed. A few more days stay in the hospital would have minimized the suffering and anxiety of the patient.
7. The conclusion of the expert is that the cataract surgery was done in a patient who actually had no cataract. A person whose initial defect which could have been corrected by spectacles and which improved with spectacles was subjected to an untimely surgery. It is also pointed out that there was lack of pre operative management like not using antibiotics either locally or systemically before the surgery.
8. It is contented by the counsel for the hospital that the report of the expert is totally vitiated as to the observation that the surgery was not called for. He has relied on the Text Book of LENS & CATARACT published by the American Academy of Ophthalmology wherein at page 78 with respect to indications for surgery, it is mentioned that the most common indication for cataract surgery is the patient’s desire for improved vision. The decision to operate is not based solely on a specific level of reduced acuity rather the Physician determines whether the patient’s reduced visual function is expected to improve sufficiently to warrant cataract surgery. The patient whose best corrected visual acuity does not meet these visual requisites may need to consider cataract surgery.
9. We find that in this regard the observation of the expert is having certain infirmities. First of all the expert has not examined the patient and it is for the surgeon who examined the patient who is to diagnose the condition of the eye and to determine as to whether the condition would further deteriorate. Evidently the complainant had difficulty in vision and that was why she attended on the camp conducted by the opposite parties as pointed out by the counsel for the opposite party. In the copy of the case sheet produced by the opposite party which is not seen marked it is mentioned that the diminished vision was there more on the left eye than on the right. 6/18 is mentioned as the vision without glasses. On testing with glasses it is mentioned as 6/12 and 6/9. We find that the conclusion of the expert that the above vision was sufficient cannot be upheld in view of the fact that the complainant was having diminished vision and hence she attended on the camp. She was found to be having cataract. She was aged 65. If the doctor who examined suggested to have the surgery done at the earliest rather than in much more advanced age he cannot be faulted. Unfortunately, the expert was not examined. There is lapse on the part of the appellant/hospital in not examining the expert.
10. It is the contention of the opposite parties that infact pre-operative administration of antibiotics was done but the same is not noted in the case sheet. It is the contention of the appellants that even if pre-operative administration of antibiotics were not done the situation would not have been different as it has been scientifically found that acute endophthalmitis can develop after cataract surgery despite the prophylactic use of fourth generation flouroquinolone antibiotics. Gram positive organisms causing acute endophthalmitis are frequently resistant to all flouroquinolones. A significant number of cases were found resistant to gatifloxacin and moxifloxacin. It is also mentioned therein that initiation of topical antibiotic prophylaxis for several days before cataract surgery does not appear to be protective. (Vincent A. Deramo, MD & Others – Acute Endophthalmitis in Eyes Treated Prophylactically with Gatifloxacin and Moxifloxacin). In the Text Book of “Lens and Cataract” at page 90 (supra) it is noted that the topical therapy for 3 days prior to surgery can reduce bacterial counts but has not been shown to reduce the incidence of infection.
11. We find that the case of the opposite parties that
pre-operatively antibiotics were administered cannot be treated as proved as the same is not noted in the case sheet admittedly. Further in the text book relied on by the counsel for the appellant itself it is mentioned that topical therapy for 3 days prior to surgery can reduce bacterial counts which would have helped in healing. The same is evidently a lapse on the part of the opposite parties.
12. Further the statistics produced shows that although a recognized complication it is a rare occurrence ie endophthalmitis post operatively. It is up to 0.05 to 0.35 in Europe in 2007 out of 16211 surgeries done and up to 0.048 out of 225471 surgeries done in Swedan in the year 2007. Every case cannot be treated as the one attracting the rare, known or admitted complication unless it is established that every protocol of the surgery, pre operative as well as post operative has been complied with.
13. In the instant case we find that the evidence as to pre-operative administration of antibiotics stands not proved. Administration of pre-operative prophylactic antibiotic to decrease the patient’s on bacterial conjunctiva flora is also mentioned in text books as quoted in Subhendu Majumdar Vs. Ashish Kumar Bhattacharjee (DR.) & Anr. III (2011) CPJ 46 (NC) produced by the appellants themselves. It is also mentioned therein that although in most cases the source of infecting organism cannot be identified with certainty; it is thought that the patient’s own external bacterial flora of the eyelids, conjunctiva and lacrimal drainage passages is the most frequent culprit. Other potential sources of infection are contaminated solutions and instruments and environmental flora including that of the surgeon and operating room personnel. Although it is seen that on detecting the infection the opposite parties have provided the possible treatments available at the hospital, no evidence has been adduced to establish that proper precautions like autoclaving of the instruments, periodical culture and sensitivity tests of the equipments and materials of the operation theatre and fumigation to be done periodically were done. No records as to the above were produced. We find that the contention that it is the own hygienic habits of the complainant who is a house maid that might have caused the infection cannot be accepted as such. Further it has to be noted that the complainant was an inpatient and the application of drops etc should have been done by the nurses while she was at the hospital. It is not after discharge that the infection developed.
14. It has also to be noted that the specific bacteria has not been identified or the same is not noted in the case sheet. What have been mentioned is only as gram positive bacillus found in numerous counts. The identification of the bacteria would have helped to find out as to whether the infection was hospital acquired or not.
15. Of course as pointed out by the counsel for the appellant/opposite party and as can be seen from the copy of the case sheet the complainant was examined by a number of doctors at regular intervals and medicines administered. Acute endophthalmitis is a devastating complication. It is also mentioned in the text book that post operative endophthalmitis may occur even in flawless surgery. But as noted above all the protocols that has been complied ought to have been documented; which is not done. The evidence available with the opposite parties with respect to the periodical culture and sensitivity tests and fumigation to be done at the operation theatre periodically ought to have been produced. As noted above every case cannot be explained away as the one falling under the recognized complication.
16. Further evidently the complainant was discharged before the treatment schedule has been completed. It appears that she was discharged with instruction to continue application of medicines and appear for the review after 15 days. The observation of the expert in this regard that a few more days stay in the hospital was desirable is also relevant. In the circumstances we find that it stands established that there is a certain amount of lapse on the part of opposite parties. As it would not be possible for the complainant to get the documents relating to the manner of cleanliness of the operation theatre etc the parties might to have produced the same.
17. It is not disputed that the vision to the left eye of the complainant has been lost. In computing the compensation, the Forum has laid stress on the factor that every thing was done free by the opposite parties including transportation to the hospital. The complainant has produced only receipt for Rs.500/- towards cost of the lens which may also be at a reduced rate. It is not disputed that the opposite party organization is doing considerable works of charity. But the point of law in this regard stands crystallized vide the decision in Indian Medical Association Vs. V.P.Shantha and Others, III (1995) CPJ I (S.C) We find that on the above ground that the surgery was done almost free of cost is no reason to reduce the amount of compensation as the opposite party institution has no case that it is not collecting any amount from any patient irrespective of the financial status. In the circumstances we find that the amount of compensation of Rs.25,000/- ordered to be paid is liable to be enhanced. We find that a sum of Rs.1.lakh would meet the ends of justice to a certain extent taking into consideration the advanced age of the complainant as well. Hence the order of the Forum is modified to the effect that the opposite parties are to pay a sum of Rs.1.lakh as compensation to the complainant with interest at 9% from 24.8.03 the date of complaint and also to pay cost of Rs.10,000/-. The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% from 15.5.2012 the date of this order.
In the result the appeal 206/09 is allowed in part and appeal 228/09 is dismissed.
Office will forward the LCR along with a copy of this order to the Forum.
JUSTICE K.R. UDAYABHANU : PRESIDENT
M.K. ABDULLA SONA : MEMBER
VL.
