A.  P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD

FA 611/2011   against CC 81/2010    on the file of the District Consumer Forum, Nellore.

Between :

Gopal Reddy,
s/o Kodandarami Reddy

Hindu, aged about 63 years, Agriculturist

R/o BurlavanipalemVillge

Vakadu Mandal, Nellore District         .. appellant/complainant

And

1.       Bollineni Eye Hospital and Research Centre,

Represented by it’s Superintendent,

Dargamitta, Nellore-524 003 A.P.                  .. Respondent/Op

2.       M/s. Prem Pharmaceuticals Ltd

          Osanbag (post)

          Palda, Indore – 452 003,

Madhya Pradesh

3.       M/s. R. R. Pharmaceuticals,

          14/170, Koremvari Kapu street,

          Nellore rep. by its Proprietor

Duggisetty Ashok Kumar                    .. Respondents

(Respondent no. 2 & 3 are impleaded as per the

Orders of the Hon’ble Commission made in FIA no.1839/2011

Dated 7.2.2012 )

Counsel for the Appellant             :           M/s. V. Gourisankara Rao

Counsel for the Respondents       :           M/s.M. Venkatanarayana for R-1

                                                                        R2-served

                                                                        M/s. Ch. C. Krishna Reddy

Coram           ;          

                              Sri R. Lakshminarasimha Rao…      Hon’ble Member

And

                                    Sri T. Ashok Kumar                ..         Hon’ble Member

Wednesday, the Twenty Eighth Day of November

Two Thousand Twelve

          Oral Order       :   ( As per Sri T. Ashok Kumar , Hon’ble Member )

****

       1.        This is an appeal preferred by the unsuccessful complainant  as against the  orders dated  03.06.2011   in CC 81/2010 on the file of the District Consumer Forum, Nellore . For convenience sake, the parties as arrayed in the complaint are referred to as under :

2.            The brief facts of the complaint  are that 

The complainant approached the OP hospital  for his Eye problem and consulted  Dr.  Sai Murali  on 15-10-2009 and he paid d Rs.125/- towards registration and consultation fee  under a receipt. The said doctor advised the complainant to undergo cataract operation to his left eye. As per his advice , the complainant joined in the hospital on 19-10-2009 and on the same day cataract operation was conducted to his left eye. The medicines and lens which were used in the opposite party hospital to the complainant were purchased by the opposite party hospital and collected the cost from him. The opposite party collected a sum of Rs.10,000/- from the complainant towards medicines used for him,  IOL charges, nursing charges, bed charges, phaco charges and professional charges and issued a bill. The opposite party further collected a sum of Rs.250/- from the complainant towards professional charges and issued a bill. After the operation, the complainant got pain in his left eye. On 20-10-2009, the opposite party took the scanning of the right eye of the complainant eventhough operation was conducted in the left eye. That fact itself shows the negligent attitude of the doctor of the opposite party hospital. On 20-10-2009 on the advice of the elders, the complainant was shifted to Sankara Netralaya, Chennai for better treatment. the doctors in the said hospital examined him  and told him that his left eye was spoiled due to the operation. And they advised for removal of the left eye. On 31-10-2009 the left eye of the complainant was removed by the doctors in Sankara Netralaya, Chennai. The complainant paid Rs.25,000/- towards medical and surgical charges He took treatment as inpatient in Sankara Netralaya from 20-10-2009 to 04-11-009. Subsequently also the complainant visited Sankara Netralaya for checkups. He spent huge amounts towards the medical expenses, attendant charges and travelling expenses. The doctors in opposite party hospital conducted cataract operation on the complainant negligently and on account of their negligence and deficiency in their service, he lost his left eye. The complainant demanded the opposite party to pay him Rs.10,00,000/- as compensation for the loss of his left eye but there was no response from the opposite party. He also issued a legal notice to OP who gave evasive reply and also contended that the medicine

i.e., Ringer Lactate Bottles is the cause for the loss of eye. After receiving the reply, the complainant issued another notice dated 18-01-2010 calling upon the opposite party to furnish the particulars of the manufacturing company whose medicines were used but the opposite party did not furnish the particulars of the company. Hence the complaint.

3.            OP  filed counter  opposing the claim of the complainant and denying the allegations made in the complaint and the gist of the counter is that     the complainant consulted the opposite party at the first instance on 15-10-2009 and after complete ophthalmic evaluation, the opposite party diagnosed that he had senile immature cataract in the left eye and he was explained of the need for cataract surgery and the said surgery was elective in nature. The complainant opted to undergo surgery on 19-10-2009 in the opposite party hospital and on the said date he  came to the hospital for surgery and he was admitted in the opposite party hospital. He was shifted to operation theatre. After taking his consent in writing duly informing him about the complications that may crop-up after surgery operation was conducted. The procedure known as, “phacoemulsification with foldable intra ocular lens implantation under peribulbar anesthesia” was adopted and the surgery was uneventful and without any complications. The complainant was discharged in the evening on the same day. He was fine and he was fully happy with his visual outcome and his attendant, (his daughter) also endorsed in the patient feed back register about the excellent performance of the surgery. The necessary post operative instructions were also given to the complainant as well as his attendant and was asked to come for review after a week, or whenever required. The case sheet reflects the above said facts. The opposite party hospital is a reputed hospital and infact the daughter of the complainant also underwent a laser vision correction procedure earlier with the opposite party. The  complainant came to the hospital on 20-10-2009 with complaint of severe pain and drop in visual acuity. Immediately by Dr. Sai Murali, the Chief Ophthalmologist of the opposite party hospital, along with Dr. Ramana Reddy, a Retina Consultant attended on him. After clinical and ultra sonic evaluation, a provisional diagnosis of endophthalmitia was made and appropriate treatment was initiated without any loss of time and it was also decided that vitrectomy procedure would benefit the complainant and as the facilities for the same were not available in the opposite party hospital, the complainant was immediately referred to Sankara Nethralaya, Chennai, for further management. The opposite party took complete care and they were in constant touch with the counterparts at Sankara Nethralaya and they have done their best to protect the interest of the complainant. The patients who underwent surgery on 19-10-2009 and 20-10-2009 in the opposite arty hospital, made similar complaints and as such the opposite party took every possible care to get the patients treated in other super specialty eye institutions. In this connection, to find out the actual cause for the complications, the District Collector, Nellore appointed a committee besides an expert committee appointed by the A.P.State Government and a committee by Drugs controller was also appointed. The Director General of Health Services, Government of India also appointed another expert committee to enquire into the unfortunate incident. All the committees made extensive investigations and they came to the conclusion that the surgeons who conducted surgeries or the para medical staff are not negligent and there was no negligence in adopting the required medical sterilization procedures, pre, intra and post operative protocols and all the committees have accordingly submitted their reports to the Governments and authorities concerned. The committee appointed by the State Government consisted of two professors of ophthalmology and one professor of micro biology from Sarojini Devi Eye Hospital, Hyderabad and the said committee gave following finding

1.
The primary source of infection is strongly believed to be the Ringer Lactate bottles used in the surgery as some of the bottles contained “pseudonomonas aruginosa”.

2.
Prima facie the enquiry did not establish negligence on the part of either the surgeons or para medical staff of the hospital in conducting surgeries or in sterilizing the equipment used in the surgery.

3.
Only some of the Ringer Lactate bottles manufactured in the batch No.RL 2905, by the supplier, appear to be infected and not all the bottles manufactured in the same batch.
 

The central investigation team on thorough investigation and enquiry made the following conclusion:

Prima facie, investigation of the surgeons and the para medical staff of the hospital involved in conducting the surgery or in the sterilization process did not establish any medical negligence.

In fact, the central investigating team recommended to ban/black list the company manufacturing the RL bottles. Even the committees appointed by the District Collector, Nellore and the Drugs Controller, as per the report of the central investigating team also found that no negligence can be attributed to the doctors and para medical staff. Thus none of the surgeons of the opposite party hospital, who conducted ophthalmic surgeries are guilty of any negligence and as stated above the unfortunate event that occurred due to the above said contaminated Ringer Lactate, caused shock and agony to the opposite party, its management and other surgeons and infact, the opposite party management made arrangements with all the other super specialty eye institutions like Sankara Nethralaya, Chennai, etc., not to charge from the patients referred to them. The opposite party feels very much agonized due to the above said mishap which occurred for the reasons mentioned above, which were beyond the control. The team of surgeons and the opposite party or other surgeons cannot be found fault for the said mishap. The opposite party came to learn that the Government of Andhra Pradesh announced payment of ex-gratia of Rs.50,000/-, to each patient, whose vision was affected. The opposite party has charged Rs.10,000/- from the complainant towards surgery, which includes surgery, provision of lens, intra operative medication, room rent etc., The allegation that the complainant paid Rs.25,000/- to Sankara Nethralaya, Chennai for treatment is false. Due to the arrangements made by the opposite party with Sankara Nethralaya, Chennai not to charge any amount for the patients who were referred by the opposite party during the fateful period including the complainant, the hospital authorities of Sankara Nethralaya, Chennai, have refunded the fees on 29-10-2009 to the complainant. The opposite party further stated that there was no negligence on the part of the doctors nor was there any deficiency in their service and thus prayed to dismiss the complant.

  4.          Both sides  filed their evidence affidavits reiterating their respective pleadings  and  Ex. A1 to A13  were marked on behalf of the complainant and Ex. B1  to B9  were  marked for the OP.

  5.          Having heard both sides and considering the evidence on record, the District Forum dismissed the complaint.

6.            Feeling aggrieved with the said order the complainant   filed this appeal on several grounds and mainly contended that even though there is material on record in support of the case of the complainant to hold that the OP rendered deficient service  to him in connection with his Cataract operation resulting in loss of vision to him the District Forum  failed to appreciate the case of the complainant in right perspective and that the Forum also  failed to see that the loss of eye to the complainant was on account of defective and contaminated drug ie.lactate which contained “PSEUDONOMONES A RUGINOSA” and that OP ought to have purchased such a drug from reputed company instead of purchasing it from M/s.Prem Pharmaceuticals, M.P. which is a non standard company and thus prayed to allow the appeal and set aside the impugned order. Subsequently the appellant complainant filed FAIA 1839/2011 to implead respondents 2 and 3 in the appeal and it was allowed on7.2.2012.accordingly the respondents  2 and 3 were impleaded as such.

7.            Heard both sides   with reference to their   respective contentions in detail.

8.            Now the point for consideration is whether the order of the District Forum is vitiated either on law or on facts ?

9.      There is no dispute that the complainant approached OP/R1 hospital with problem in left eye and had undergone cataract operation with IOL to his left eye on 19.10.2009 in the said hospital. According to the complainant he developed pain to the left eye and loss of vision on 20.10.2009 and therefore he had been to another hospital viz. Shankara Netralayaz at Chennai and that on 31.10.2009 his left eye was removed in the said hospital on the ground that  they found that it was spoiled due to infection on account of the earlier operation conducted by OP. According to him he lost his left eye on account of administration of defective and contaminated drug i.e. Lactate and that it contained “PSEUDONOMONES A RUGINOSA” and that for using the said drug the OP so also for manufacturing and selling the said drug respondents 2 and 3 are liable to answer his claim.

10. OP.1  argued supporting the impugned order to the effect that assigning satisfactory and acceptable reasons the District Forum rightly dismissed the complaint holding that there was no negligence on the part of the doctors in the hospital of OP.

11. second respondent/manufacturer of the said alleged drug remained absent in the absence of service of notice

12. whereas the third respondent alleged vendor of the said drug submitted written arguments and advanced oral arguments to the effect that the prayer in the complaint is against Ops hospital/R1 herein and therefore such a relief cannot be claimed against R3 and further argued that not impleading AP Distributor of the said drug and also for the reason that the reports given by the different agencies were behind the R3 and hence the same cannot be based to fasten R3 with liability.

13. It is true that even though R2 and R3 were added as parties to this Appeal there are no consequential pleadings against them in the complaint by way of amendment to the complaint. According to OP. 3, the  second respondent is  the manufacturer of ringer lactated drug and the said manufacturer supplied the drugs to SR Distributors, Vijayawada, who is their dealer in the State of Andhra Pradesh and they supplied such a drug to OP. 3 at Nellore and in turn it was supplied to the hospitals and that manufacturer of the said drug is different and the AP Distributor is different and that since the said dealer to the State of AP is not added as party the complaint is not maintainable. The complainant did not take any recourse in the said context nor put forth argument that the said AP Distributor is not a necessary party. R3 also contended that Government Analyst opined that sample RL 2905 is of standard quality as defined in the drugs and Cosmetic Act 1940 and that other hospitals report for the Bath no. 2905 is that there is no reaction and irritation to the patients and no compliant as on today and in that view point also the claim is not sustainable against R3. Admittedly the said R3 did not file any counter in the complaint pleading all the aspects put forth in its arguments before this Commission,.

14.  It was further contended that reports were prepared by the committees I,.e. the central Investigation Team, the principal Secretary to Govt. of A.P , Health, Medical, Family welfare .(K2) Department, Hyderabad and the AP Ophthalmological Society without  giving opportunity to R3 and therefore they cannot be used against the R3 and  that opportunity in the said context has to be given to the R3 to challenge the said reports with necessary amendments to the complaint,  Further pleadings of the OP hospital so also the respondents 2 and 3 herein, evidence affidavits and documents on behalf of all the said parties are to be taken to appreciate the case to arrive at a right conclusion.   Therefore in view of the above discussion, we are of the opinion that it is just and reasonable to set aside the impugned order and remit back the matter to the District Forum for fresh disposal according to law after giving opportunities to both sides to file their additional pleadings, evidence affidavits and documents.

15. In the result the appeal is allowed and the order of the District Forum is set aside and the case is remitted back to the District Forum for fresh disposal according to law  keeping in view of the observations made in this order. Parties shall bear their own costs of the appeal.

                                                                                    MEMBER

                                                                                    MEMBER     

                                                                                    DATED : 28.11.2012.