Adv. for the complainant- Sri B.C.Pradhan & Associates.
Adv.for the O.Ps 1 & 2 - None.
Adv.for the O.Ps 3 & 4 - Sri D.Mohanty & Associates.
Date of filing of the case- 03.07.2015.
Date of order -20.04.2016
JUDGMENT.
Sri P.Samantara, President.
In the matter of an application u/s.12 of the Consumer Protection Act,1986 filed by the complainant alleging deficiency in service against the opposite parties.
2. The factual matrix of the case is that the complainant felt sudden decreased intensity of his right eye and consulted the doctor at District Headquarter Hospital, Bolangir on dt.03.04.2014, registration No.1121.The eye doctor advised to test visual acuity, Beva IOP and VDRL. Post such tested used the prescribed medicine for ten to eleven days but felt no improvement in the right eye vision for better, the complainant has been advised to avail the better facility at capital Hospital, Bhubaneswar.
3. The CPD Registration No-1436,dt.15.04.2014.Do the advised test but after perusal of the testing report the complainant has been counseled and referred to L.V.Prasad Eye Institute for better consultation and treatment.
4. The complainant averred on dt.16.04.2014 registered in the L.V.Prasad Institute, vide receipt No.20065 on payment of Rs 650/- for investigation and test. The test report speaks, the investigation and test ensured relating to “Lenses echo sun, Medium reflective clump spike noted in the vitreous cavity ,low reflective membrane seen in the posterior pole along with multiple medium reflective dot spike under neath. No ct/cd, Retina On and advised to undertake right eye operation because of the problem.
5. It is also stated on contract, the surgery Account Deptt. The surgery deptt. Estimated the expenditure around Rs 30,000/- fixing the date of operation dt.19.05.2014. Deposited Rs 100/- under money receipt No.BBI-P27455 dt.19.05.2014 and further fixed the operation dt.23.05.2014.
6. On dt.23.05.2014 the complainant deposited Rs 22,100/- vide MR No.BBI-P27455. The surgery performed on “OD Paras Plana Vitrectomy (PPY). OD endolacer as part of V2 surgery remaining in the hospital for two days and discharged with, in advise of medicines and next appointment on dt.09.06.2014 with O.P.3.Further consultation date was dt.08.07.2014 and accordingly the O.P.3 examined the right eye with usual medicine prescription and spectacles with lense that supplied by the O.P.3 at cost of Rs 1,202/- vide receipt No.6143995,being delivered on dt.14.07.2014.
7. On the line of normal procedure of visit, on dt.12.08.2014 the complainant while consulting complained that consumption of prescribed medicine, spectacle and repeated visit with consultation failed in improvement of eye vision and advising further operation with more incurred expenditure assessment is a costly affair and beyond his monetary limit, shows the manner of operation is deficient as to standard procedure followed with.
8. The complainant averred, the in-efficacious and infallible operation compelled him to take advise and consult at AIIMS, Bhubaneswar and examination of the papers revealed” the eye has already gone to a severe deteriorated condition due to wrong operation adopted by O.P.No.3 and referred to Dr.R.P.C. AIIMS, Delhi for needful with further consultation and prescription. The complainant remain half-hearted and disgraced for the loss & apathy meted by the O.P-3 and severe deterioration of his operated right eye vision, for such deficiency in service filed the case with prayer to refund the amount paid to them and compensation with litigation expenses and relief deemed fit. Relied on papers of District Head Quarter Hospital, paper of LV Prasad Eye Institute, Bhubaneswar and Out patient Deptt. History/treatment note- AIIMS, Bhubaneswar and affidavit.
9. In pursuant to notice, the O.P.1 and 2 neither prefer to appear nor submitted written version giving sufficient opportunity to appear and made version.
10. The O.P.3 and 4 being one entity filed the written version contending the present dispute as laid and framed is not maintainable in the eye of law. The fact as laid is totally misconceived, groundless and not supported by any authority. No cause of action. No territorial jurisdiction.
11. And stating , the complainant has not approached the Hon’ble forum with clean hand and suppressed the material fact. The complainant is not the consumer of opposite party one nor claimed any relief. The allegation made in the complaint do not constitute a “Consumer Dispute” moreover the complainant has no locus-standi to initiate the present proceeding and mischievously initiated to tarnish the image and to get undue sympathy and monetary benefit on the basis of concocted, baseless and false allegations, without support of any authority.
12. Further admitting, the complainant received treatment from the opposite party 3 and the O.Ps doctors acted on good faith and has maintained all norms of medical professional ethics and in course, did nothing to make them liable. The disease which the complainant was suffering requires repeat surgery as per medical science and on the basis of test report available to it. It is also false to say that destruction of complainants right eye forever and deprivation of his vision permanently is hypothetical and without any supportive documents.
13. This O.P has discharged its duty carefully, attentively, skillfully with excellence as per medical ethics and performed his job with utmost satisfaction for which improvement in treatment was shown in test report.
14. Subsequently due to non execution of medical advice the complainants vision could not be improved remarkably.
15. Further admitted to have ensured the operation in right eye and admission on 19th May 2014 surgical intervention was planned and repeated consultation was sought.
16. The para 14 of the written statement reads:- “Again after 1 month, on 12th Aug 14,patgient came with complaint of decreased vision. His vision was 100/400 and IOP was 15 mm Hg in the operated eye Retina was partially detached. The need for repeat surgery under guarded visual prognosis was clearly explained. He was planned for neck buckle, paras plana vitrectomy, Membrane peeling, Endolaser, PFCL and Silicone Oil injection in right eye. The patient however never returned thereafter for the same” It is also an institution having reputation in the state as a referral hospital for treatment of eye.
17. This O.P.3 has not done anything so as to make it liable for medical negligence and deficiency in service in the present dispute.
18. In view of the facts mentioned above, the case of the complainant is devoid of any merit and the complaint filed is liable to be dismissed.
19. We have heard the learned counsel for the petitioner. He made the following submission. The facts germane to the present are thus. The petitioner has registered repeated visited and consulted for the diagnosis which is admitted under para 14 of the written version. The last para-14 also speaks- on 12th Aug 14 ,patient came with complaint of decreased vision. His vision was 200/400 and IOP was 15mm Hg in the eye operated retina was partially detached. The need for repeat surgery under guarded visual prognosis was clearly explained”. Which explained that the surgical intervention as planned with to paras plana vitrectomy, endolaser, fluid gas exchange and retinal cryopery in right on 23rd May 2014 has failed, which warranted a repeat surgery, which is a O.P’s negligence under the principle of Res Ipsa locquitar” being in circumstantial evidence to the case in question. It is neither inferred nor presume or rather negligence is supported by higher institutions observation. Again L.V.Prasad Eye Institute is admittedly referral Institution in Odisha. It is premier institution of great repute. When a person decides to be treated in such an institution, it is with expectation of higher quality of treatment and care. Again status of a hospital carries an implied assurance that quality of diagnostic, clinical, surgical, para medical land all other services offered by it, would be commensurate with its status and reputation and money paid is accentuate with the extent of such degrees which failed in the present case and in resultant, the institution advise to undertake repeat surgery under guarded visual prognosis, which again says such advise is clearly points to medical negligence.
20. As far as ,the O.P 3 & 4 contention and the pleadings in para 10 reads- It is false to say, the O.P.3 advised for repeated surgery, is a contradictory to its admission under para-14 which is well explanatory one.
Para-10- The complainant was undergoing treatment by defendant No.3,butwas not acting as per the advise of the concerned doctors. More over the disease which the complainant was suffering requires repeat surgery as per medical science. In rebuttal no evidentiary report has been placed to proof that the patient has not acted as per the advise of the doctor nor analyzed by any discussion or substantiation that such cataract operation generally requires double manner operation but we assume, second advise is to undermine that latches committed at first stage that is question which is an evidence in proof of medical negligence committed.
21. Further the document dated 03.04.2016 furnished by the complainant which speaks a comparison study, analysis and counseling referred to Shankar Netralaya Madras in concurrence to the report of LVPE, Bhubaneswar & AIIMS, Bhubaneswar it is detected at present, the complainant is unable to see in right eye and Defective vision in left eye and no improvement noticed after the surgery in question in elaborating the visual prognosis and non improving is more proliferate ,the restoration of visual acuity to normal or above in post operation has become distant dream. In the above made circumstance, we made the opinion in reliance of the decision. Ram Avatar Sharma Vs Dr.Nabin Kumar Pattanaik- Held- To hold a medical practitioner guilty of professional negligence, standards of an ordinary practitioner of that discipline will have to applied”- 2012(1) CPR 217 (NC). All other decisions perused revealed same are not fit to this case and also not relevant to the present scenario.
22 In view of the above noted discussion, we find the corroboration in documentary that the loss of visual acuity prevails. The petitioner in making surgery does not find any relief as with operation that advise with more surgery is needed so in such a situation, the loss is magnified and amply proved one and the O.Ps are liable to pay. Thus ordered.
ORDER.
The case is allowed on contest. The O.Ps 3 & 4 are jointly and severally liable to pay the petitioner towards loss, suffering, harassment and mental agony a sum of Rs 23,802/- (Rupees Twenty three thousand eight hundred two) only, as refund money along with a sum of Rs 20,000/-(Rupees Twenty thousand) only, as compensation inclusive of litigation expenses incurred within thirty days of this order failing which the entire amount shall carry interest @ 9% per annum from the date of application till realization without fail.
(II) Further we direct the O.Ps 1 & 2 to pay a sum of Rs 2,000/- each to the petitioner for non adhering to the call of the forum being giving with sufficient opportunities, within above noted time frame, failing which @ 10% P.A interest will accrue till realization.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 20TH DAY OF APRIL 2016.
(G.K.Rath) (P.Samantara)
MEMBER. PRESIDENT.
