Punjab

Faridkot

CC/18/1

Ranjeet Singh - Complainant(s)

Versus

Brar Eye Hospital Pvt. Ltd - Opp.Party(s)

Dinesh Jindal

30 Dec 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

 C. C. No. :                01 of 2018

 Date of Institution:    01.01.2018

 Date of Decision :      30.12.2021

 

Ranjeet Singh now deceased, son of Utar Singh resident of Near Water Works, Village Kuraiewala, Teh-Gidderbaha & District – Sri Muktsar Sahib now represented through his L.R.s:-

1. Sukhjinder Singh son of Ranjeet Singh,
2. Kirandeep Kaur daughter of Ranjeet Singh,
3. Jasvir Kaur widow of Ranjeet Singh

All residents of Village Kuraiewala Tehsil Gidderbaha, District Sri Muktsar Sahib

...Complainants

Versus

1. Brar Eye Hospital Pvt Ltd, Faridkot Road, Kotkapura, Tehsil Kotkapura, District Faridkot through its Managing Director/ Director/Authorized Person.
2. Brar Eye Hospital Pvt Ltd, G. T. Road, Near Rose Garden Chowk, Bathinda. Tehsil and District Bathinda through its Managing Director/ Director/Authorized Person.

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3. Dr. P S Brar, Responsible and Authorized Person, Brar Eye Hospital, Pvt Ltd, Brar Eye Hospital Pvt Ltd, Faridkot Road, Kotkapura. Tehsil Kotkapura, District Faridkot.

.....Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

(Now, Section 35 of the Consumer Protection Act, 2019)

 

Quorum:  Smt Param Pal Kaur, Member,

                 Sh Vishav Kant Garg, Member.

Present: Sh Neeraj Maheshwary, Ld Counsel for Complainant,

              Sh Jatinder Bansal, Ld Counsel for OPs.

 

ORDER

(Param Pal Kaur, Member)    

 

                                Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to pay  Rs.7,00,000/-as compensation on account of medical negligence and for further directing OPs to pay Rs.2,00,000/- as compensation for deficiency in service, harassment, inconvenience

 

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and mental agony suffered by him alongwith litigation expenses of Rs.20,000/-.

2                                     Briefly stated, the case of the complainant is that complainant (now deceased) had problem in his eye and he approached OPs for treatment. OPs checked his eye on 31.05.2017 and after check up told that there was cataract in his right eye and advised surgery for same. OPs gave eye drops for his eye and complainant duly followed their instructions. On 9.06.2017, complainant got conducted necessary laboratory tests from Public Clinical Laboratory and after considering the reports of tests, surgery of cataract in his eye was done on 10.06.2017. Treatment was given to complainant and C/E R/E with implantation of IOL with PHACO was done and for this surgery, he paid Rs.9500/- to OPs and he was discharged by OPs on same day with certain prescriptions of medicines that were duly followed by him, but on next day, he did not feel well in his right operated eye. There was swelling on his right eye and even there was no vision in his eye,  he approached OPs on 12.06.2017. OPs gave some medicines, but condition of his eyes did not get well and it was looking more bigger

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and dangerous. On 15.06.2017, OPs increased the drops of medicines and told him to not to worry and assured that it would be better soon, but complainant did not get any relief and on 18.06.2017, face of complainant disfigured due to swelling caused by operation of OPs. Due to swelling, his face was completely disfigured and he had unbearable pain on operative part of his eye. He was admitted in Dayanand Medical College and Hospital, Ludhiana, where after conducting Ultrasound, MRI Brain with Orbit, City Scan of Nose and PNS upon him, he was told that cataract operation done by OPs was not proper. Surgery conducted upon his eye for treatment of cataract was done rashly and in negligent way and even there was no vision in his right eye. Due to carelessness of OPs, condition of complainant deteriorated and it resulted into loss of vision. OPs gave steroids to complainant in excess and cataract surgery performed by OPs was without any diabetic control mode and it made the condition of complainant worst and his face was also disfigured due to negligent act of OPs. Thereafter, complainant approached PGI, Chandigarh for further treatment where it came to his notice that nerves of his eyes

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totally damaged and blood supply was stopped. In PGI, Chandigarh, plastic surgery was done upon him and in all this, complainant had to spend Rs.7,00,000/-upon his treatment. It is further submitted that due to deficiency in service by OPs and due to their rash and negligence conduct, complainant has lost vision in his right eye and he has suffered huge harassment and mental agony in all this. Complainant has prayed for directing OPs to pay Rs. 7 lacs to him for expenditure incurred by him on further treatment of his eye and for plastic surgery and Rs.50,000/-as compensation for harassment and mental agony suffered by him on account of improper treatment given by them and Rs.50,000/-as cost of litigation.  Hence, the present complaint.

3                                              The counsel for complainant was heard with regard to admission of the complaint and vide order dated 03.01.2018, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                               On receipt of the notice, the opposite party no. 1 to 3 filed written statement taking preliminary objections that complaint in hand is not maintainable in the present form as no

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cause of action arises against answering OPs. There is no negligence or deficiency in service on the part of OPs and complainant has filed the present complaint with ulterior motive to extract money from them. Moreover, present complaint involves complicated questions of law and facts requiring lengthy evidence, which is not possible in the summary proceedings of Consumer Protection Act. Moreover, it is liable to be dismissed for misjoinder of parties as Dr. P S Brar/OP-3 Director of the Company has been wrongly impleaded as party in present complaint. Director of the company cannot be made liable in its individual capacity. It is further averred that complaint is bad for non joinder of necessary party as answering OPs are professionally insured with New India Assurance Company Limited without which present complaint is liable to be dismissed. However, on merits, OPs have denied all the allegations of complainant being wrong and incorrect and asserted that complainant did not come for treatment on 31.05.2017 at Kotkapura, rather on said date, complainant was examined at Brar Eye Hospital Private Limited, Bathinda/OP-2, who clearly informed him that complainant has cataract in his both eyes

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which can be removed with surgery and new lens will be implanted. Cataract in complainant was posterior polar cataract and different and complicated than in normal patients. In cases like that of complainant, posterior capsule is deficient and dehiscent and is very much adherent to the cataractous region. When operating surgeon opens the cataract by opening the anterior capsule through capsulorrhexis procedure and proceeds to remove the cataract, the posterior capsule usually gets opened and cataract can then fall behind in the vitreous cavity. In this scenario, the dropped lens matter or cataract is removed in second surgery through pars plana route procedure. Sometimes intraocular lens can be implanted primarily in the same sitting in the sulcus or sometimes the intra ocular lens implantation has to be deferred to the second surgery or stage. All these feature of particular eye were duly explained to him and after having understood all these likely complications, complainant and his relatives gave consent for the surgery in writing. It is denied that OPs ever gave any guarantee or warranty regarding surgery to be done, rather everything regarding complications was clearly explained to him in vernacular. He was also

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clearly explained about special risk of systemic disease like diabetes in his case, which can complicate the case to any extent and can even include loss of vision. It is admitted that complainant came to their hospital on 10.06.2017 and necessary laboratory tests and other investigation was done from Metro Laboratory, Goniana Road, Bathinda. His reports were normal. Though he was diabetic, but at the time of surgery his blood sugar level was 118 MG/DL i.e within the normal range. Eye Surgery of complainant was done by Dr. Sunny Goyal MS (Eyes) who is specialized in such kind of surgeries and who conducted five other eye surgeries on 10.06.2017 and all surgeries conducted by him were successful. Surgery of complainant was also satisfactory and after surgery he was discharged therefrom and due to particular condition of his eye, oral steroids and antibiotics were given to him alongwith some other oral medicines. He was clearly explained that due to steroids, his blood sugar level may rise and therefore, he should keep regular check on it through his regular family physician and adjust the dose accordingly in case of any need. It is sternly denied that complainant paid Rs.9,500/-to answering OPs, rather he paid only

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Rs.3,500/-to them and remaining amount of Rs.6000/-is claimed by OPs under Bhai Ghanaiya Scheme from the Government. It is further averred that on 12.06.2017, patient came to the hospital with problem of some inflammation in eyes and pressure was also raised. His blood sugar level was within permissible limits. Medication was continued and he was strictly told to keep a watch on his sugar level which could rise due to steroids which were given to heal the eye. Complainant again visited the hospital on 15.06.2017. Inflammation and pressure of eye had significantly come down, blood sugar level was again in permissible limits and his vision also started improving. It is sternly denied that he had any swelling in his eye and it had taken bigger shape with dangerous look. Complainant was advised to come up for follow up on 20.06.2017 and was also advised medication, but after 15.06.2017 he never attended the hospital for proper follow up. Surgery of the eye of complainant was done by specialist doctor with utmost care and there is no negligence or deficiency in service on their part. It is further averred that as per record of Dayanand Medical College and Hospital, patient was diagnosed as right maxillary sinusitis

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and orbital sinusitis which cannot be due to surgery of eye. Causes of sinusitis is due to some chronic infection or tumour. Before or during the treatment, patient never disclosed regarding infection of any kind in any other part of his body. From record, it also appears that after 15.06.2017, complainant did not continue the treatment suggested by answering OPs on 12.06.2017 and 15.06.2017. Under peculiar condition of his eye, his general and metabolic condition and due to his careless attitude towards himself, he developed complications in his body. Loss of vision is not due to surgery or any deficiency in service on the part of answering OPs, rather it is due to carelessness of complainant. There was no excessive use of steroids during treatment, rather steroids were given to him within permissible limits as these were necessary for treatment. Complainant was duly informed that steroids were given to him and he was advised to keep check on his sugar level and to remain in contact with his physician. Ld counsel for OPs further brought before the Commission that they have no knowledge regarding treatment of complainant by PGI, where he was diagnosed and

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operated for Mucormycosis, which cannot be due to surgery performed by answering OPs. The Mucormycosis was due to fungal tumour and PGI did not find any deficiency in surgery conducted by answering OPs. It is sternly denied that complainant spent Rs.7 lacs on his treatment and he is not entitled for compensation and relief sought by him. All the other allegations are totally denied being wrong and incorrect and it is reiterated that there is no deficiency in service or negligence in giving treatment to complainant. Prayer for dismissal of complaint with costs is made.

5                                               Parties were given proper opportunities to prove their respective case. Ld counsel for complainant tendered in evidence affidavit of complainant Ex.C-1, and documents Ex C-2 to C-8 and then, closed the evidence on behalf of complainant.

6                                               In order to rebut the evidence of the complainant, the Ld Counsel for OPs tendered in evidence affidavit of Dr. Sunny Goyal Ex OP-1 to 3/1 and documents Ex OP-1 to 3/ 2 to Ex OP-1 to 3/31 and then, closed the same on behalf of OPs.

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7                                            We have heard the learned counsel for the complainant as well as opposite parties and have very carefully gone through the affidavits and documents available on the file.

8                                           The case of deceased complainant is that on 31.05.217,due to some problem in his eye, he approached OPs, who after check up told that he was suffering from cataract in his right eye and advised surgery. On 9.06.2017, complainant got conducted necessary laboratory tests and after considering the test reports, surgery of cataract was done on 10.06.2017. Cataract operation was done and C/E R/E with implantation of IOL with PHACO was done. He paid Rs.9500/- to OPs for surgery and was discharged on same day with certain prescriptions of medicines that were duly followed by him, but on next day, he did not feel well in his right operated eye. It was swollen and even there was no vision in his eye. He approached OPs on 12.06.2017. OPs gave some medicines, but condition of his eye did not get well and it was looking more bigger and dangerous. On 15.06.2017, OPs increased the drops of medicines and assured that it would be better soon, but he did not get any relief. On 18.06.2017, his

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face disfigured due to swelling and he had intolerable pain on operative part of his eye. He was admitted in Dayanand Medical College and Hospital, Ludhiana, where after conducting Ultrasound, MRI Brain with Orbit, City Scan of Nose and PNS upon him, he was told that cataract operation done by OPs was not proper. Surgery was conducted rashly and in negligent way and even there was no vision in his right eye.  It is alleged that due to carelessness of OPs, condition of complainant deteriorated and it resulted into loss of vision. OPs gave steroids in excess and surgery was done without any diabetic control mode that deteriorated his condition. He reached PGI, Chandigarh for further treatment where it came to his notice that nerves of his eyes totally damaged and blood supply was stopped. In PGI, Chandigarh, plastic surgery was done upon him and in all this, complainant had to spend Rs.7,00,000/-upon his treatment. Due to deficiency in service and due to rash and negligent conduct of OPs, complainant lost vision in his right eye and had suffered huge harassment and mental agony. Prayer for granting justice is made. On the contrary, Ld Counsel for OPs pleaded that there is no negligence on the part of the OPs, they

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have provided the best treatment which is available for the disease of complainant. The Counsel for the OPs argued that the complainant has not proved his case by any expert medical evidence and by mere allegations of medical negligence it cannot be proved. In his support he put reliance on the citation Usashi Mukherjee & anr Vs Coal India Ltd. And ors. 2010 (1) Consumer Law Today,136, in a case of Medical Negligence, it was observed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that “medical negligence-Burden of proof- the onus to prove medical negligence lies largely on the claimant - the onus can be discharged by leading cogent evidence - a mere averment in complaint which is denied by the other side cannot be said to be evidence by which case of complainant can be said to be proved - it is the obligation of the complainant to provide the facta probanda as well as the facts probantia.” Ld. Counsel for the OPs argued that before the treatment, it was well informed to the complainant regarding the disease and her condition and she gave her consent for the same and after her consent the doctor started treatment. In his support he put reliance on the citation 2010 (4) Consumer Law Today, 126 titled

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as Vinay Kumar and others Vs Post Graduate Institute of Medical Education and Research, Chandigarh and another whereas the Hon’ble Consumer Disputes Redressal Commission Union Territory, Chandigarh, held that “Medical service-Medical negligence alleged-Surgery-Laparoscopic method-For removal of gallbladder which was having stones-there is consent letter signed by complainant no.1 giving his consent for surgery under his own risk and willingness-No evidence on record that treating doctor was no qualified to treat the patient or he did not follow the line of treatment as per medical norms or he did not take proper post operative care of the patient-Complainants have not been able to produce any evidence or medical opinion to prove their contention that the Pancreas of the deceased has been negligently cut or damaged by the treating doctors and that eventually caused Pancreatitis resulting in the death of the patient or any other medical negligence on the part of OPs-Complaint liable to be dismissed.” As such there is no negligence and carelessness on the part of the OPs. The Counsel for the complainant miserably failed to prove his case. There is no negligence on the part of the OPs and complainant file the present complaint only to extract money

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from the OPs and prayed that the present complaint may be dismissed with cost.

9                                     OPs further argued that complainant has levelled false and baseless allegations on OPs. He put reliance on the citation 2014(3)Consumer Law Today, 9  titled as Vijay Dutt Vs Dr.R.D. Nagpal & others whereas Our Hon’ble National Commission, New Delhi observed that “Consumer Protection Act, 1986,Section 2(1)(g)-Medical Negligence -doctors cannot give a warranty of the perfection of their skill or a guarantee of cure and if the doctor has adopted the rightcourse of treatment and if he is skilled and has worked with a method and manner best suited to the patient, he cannot be blamed for negligence if the patient is not totally cured”. He also put reliance in citation 2010 (2) Consumer Law Today, 282 (S.C) titled Kusum Sharma & ors Vs Batra Hospital & Medical Research Centre & Ors whereas Our Hon’ble Apex Court laid down Basic principles regarding medical negligence which are reproduced as under:-

                             “On scrutiny of the leading cases of medical negligence both in our country and other countries especially United

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Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-

I.       Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II.      Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III.    The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

 

 

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IV.     A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V.    In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI.    The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII.    Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the

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other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII.    It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX.    It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X.   The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

XI.   The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in

 

 

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the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

                   In para no.90 Our Hon’ble Apex Court has observed that                            ‘As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind’.

10                                         Moreover, careful perusal of page 15 of Ex C-4 which is Discharge Summary report given by Brar Eye Hospital, clearly reveals the fact that procedure adopted for cataract surgery was appropriate and treatment given to  patient was proper and it was as per standard terms and scientific guidelines issued for treating cataract patients. Operation was done skilfully and there is no negligence in performing cataract operation by OPs. In this case of normal cataract surgery, it has not been proved that Retinoorbital Mucormycosis has  been caused due to surgical trauma. There are various causes which  related to maxillary sinusitis such as surgical trauma, systematic

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conditions like rheumatoid arthritis, diabetes, immune competence, bleeding tenancy, infection etc and in the absence of any specific evidence, it is not possible for us to say that it was due to surgical trauma. Even before conducting cataract operation, pre operative lab investigations were also done in exact manner. Eye drops recommended by concerned doctor one day before surgery were also as per requirement and eye drops and medicines prescribed after operation were also as per standard recommended treatment for cataract. No negligence is established on the part of operating doctor and complainant has failed to discharge the burden of negligence of OPs.

11                                                  We have thoroughly gone through file and evidence and pleadings put forward by respective parties and from the perusal of all documents placed on record and in view of above discussion, we come to the conclusion that there is no deficiency in service on the part of OPs as they have given treatment as per medical standards. They adopted appropriate procedure and during treatment no negligence is committed by them. Therefore, we are of

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considered opinion that present complaint is devoid of any merits and there is no deficiency in service on the part of OPs. Hence, complaint in hand is hereby dismissed. However, in peculiar circumstances of the case, there are no orders as to costs. Copy of order be supplied to the parties free of cost. File be consigned to record room.

Announced in Open Forum

Dated : 30.12.2021

                     (Vishav Kant Garg)               (Parampal Kaur)                                                     Member                                  Member

 

 

 

 

 

 

 

 

 

 

 

 

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Ranjeet Singh   Vs   Brar Eye Hospital

                                                         

Present: Sh Neeraj Maheshwary, Ld Counsel for Complainant,

              Sh Jatinder Bansal, Ld Counsel for OPs.

              Arguments heard. Vide our separate detailed order of even date, complaint in hand is hereby dismissed against OP-1 to 3. Copy of order be supplied to the parties free of cost. File be consigned to record room.

Announced in Open Commission

Dated : 30.12.2021

                     (Vishav Kant Garg)               (Parampal Kaur)                                                     Member                                  Member