BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P. No: 343/2003 Filed on 25/8/2003 Dated : 16..02..2009
Complainant:
Thankamma, Mohan Vihar, Maruthoorkadavu, Kalady, Karamana-P.O., Thiruvananthapuram. (By Adv. S. Rajagopalan Nair)
Opposite party:
Aravind Eye Hospital and Post Graduate Institute of Ophthalmology, S.N.High Road, Thirunelvei-627 001. Represented by its Director. (By Adv. R. Rajasekharan)
This O.P having been heard on 31..01..2009, the Forum on 16..02..2009 delivered the following:
ORDER
SMT.S.K. SREELA, MEMBER:
The brief facts of the case are as follows: The complainant who is a poor old woman had difficulty in her vision in the left eye. The opposite party Aravind Eye Hospital and Post Graduate Institute of Ophthalmology represented by its Director conducted, an Eye camp at Attukal in Trivandrum on 4/7/2002. The complainant consulted a Physician of the opposite party, who was available at the said Eye camp on 4/7/2002 vide O.P.No. 96 for treating defective vision in her left eye. On consultation, the Physician of the opposite party told the complainant that complainant was suffering from Cataract for which she was advised to undergo an operation in the left eye so as to improve the vision in that eye. It was assured at the camp that her vision would be improved after the operation. Accordingly complainant was admitted in the opposite party's hospital and the surgery was done on 5/7/2002 and a PC 10L was said to have been implanted. The complainant was told that the operation was successful and the vision in the left eye would improve on opening the dressing of the left eye. But consequent on this operation, the complainant was suffering from excruciating pain in the operated left eye. Though the complainant had made complaint about this pain with the Physician of the opposite party, she did not get any relief from such pain till she was discharged from the hospital on 16/7/2002. Had proper care and service given to the complainant, she would have been relieved from such excruciating pain. But the complainant had to suffer a lot of pain due to the irresponsible and negligent act of the opposite party. At the time of discharge, the complainant was advised to visit the hospital on 1/8/2002 for a review. The complainant had been following the treatment strictly in accordance with the instruction, prescription and advice of the physicians even from the very inception of the treatment. However, there was no relief from the pain. The complainant was under hope that normalcy would be restored. The complainant visited the hospital on 1/8/2002 for review as advised with the hope that the vision would improve. On opening the dressing of the left eye on the date of review, it ws noticed to the shock and surprise of the complainant that there was total loss of vision quite contrary to what was assured and consoled by the Physicians of the opposite party. There was no explanation from the concerned physician for this. It is clear that no reasonable care and attention was given to the complainant while she was under treatment of the opposite party. The treating Surgeon in the opposite party's hospital failed to provide services and care to the complainant. The surgeon was duty bound to exercise reasonable care in carrying out professional skill, diagnosis, advice, surgery and treatment. There was culpable negligence and lack of due and caution in performing operation and in administering treatment to the complainant. That was why the complainant had suffered excrutiating pain consequent on operation which ultimately resulted in the total loss of vision in the left eye of the complainant. Apparently the opposite party failed to provide services and care to the complainant as cast upon the opposite party and as a result the complainant lost eye sigt in the left eye. There is deficiency of service and culpable negligence. Hence this complaint for compensation and costs.
2. The opposite party has filed version contending as follows: It is admitted that the complainant was examined for her eye defect at Kalady in Thiruvananthapuram. But the allegation that the physician who examined the complainant told her that her vision would improve after the operation and that resulted in filing of the present complaint at Thiruvananthapuram is not correct and the opposite party submits that the patient was treated only at Thirunelveli and the operation was done only at Thirunelveli and this Forum has no territorial jurisdiction to entertain this complaint. The comnplainant was examined at the eye camp and was also treated and operated at Thirunelveli at free of cost and hence the complainant cannot be termed as a Consumer as defined under the Act. Hence on that ground also the complaint is not maintainable before this Forum. The patient was aged 65 years and her left eye vision prior to surgery was 6/24p. All the relevant investigations were done before the cataract surgery. She was operated for cataract in her left eye on 5/7/2002 and a PC intra occular lens was also implanted. The next day of the surgery, she had in her left eye signs of endophthalmitis, like lid edema, purulent discharge, corneal edema, severe anterior chamber reaction and no red fungal flow. The infection is due to the negligence of the paient, which may occur for various reasons. The allegation that the complainant did not get any relief from such pain till she was discharged is not correct. The further allegation that if proper care and service were given to the complainant she would have been relieved from such pain is also not correct. Due to the careless handling of the eye by her and negligence the above defect had occured in the left eye. The allegation that she was not given proper care is also false. She was also immediately seen by two other senior doctors. A conjunctival smear and a vitreous tap was taken for microbiological evaluation. Intravitreal vancomycin and amikacin were given along with topical fortified tobramycine eye drop, fortified cephazoline eye drop, Tab.Diamox twice daily ½ tab, T.Orthobid 1 tid, Homide eye drop twice and Inj.Cifran 200ml iv. On 6/7/2002 she was examined by senior doctors. The microbiology reports showed bacillus species, which grew in culture from the conjunctival smear and the vitreous tap. On 7/7/2002, she was seen twice and appropriate treatment continued till 16/7/2002 when she was discharged the infection was getting controlled and her vision was perception of light. She was discharged on 16/7/2002 with Ciplox eye drop, Timolol 0.5% eye drop, cyciopent eye drop, Ciplox eye ointment at night,T.Diamox ½ BD, T.Voveran according to the culture and sensitivity reports. She was seen by all senior surgeons of Aravind Eye Hospital, Tirunelveli including the Chief Medical Officer and utmost care has been taken to treat the infection which occurred in her left eye. The doctor who operated had done number of such operations and there was no negligence or incompetence on that part of the surgery or in the post operative care. The allegation that the complainant has been following the treatment strictly in accordance with the instructions and prescriptions is not correct. If she had followed the advise of the doctors, the infection would not have occurred. The surgeon of the opposite party has done their best and the hospital does not differentiate between a poor woman and a rich woman. The infection may be caused due to several factors such as lack of hygienic habits like improper cleaning of the hands before applying drops on the operated eye, general hygiene of the patient etc...committed by the patient. No false allegation is made on the complainant since proper care was taken by the opposite party. The treatment proposed and given is seen from the case sheet. There was no compulsion for the operation and the patient herself wanted surgery. Even prior to the operation the vision was 6/24p, which is equallent to loss of vision. The alleged loss of the eye sight in the left eye is not due to fault of the opposite party. There is no deficiency of service. Hence opposite party prays for dismissal of the complaint.
3. Complainant has been examined as PW1, marked Exts. P1 to P5. DW1 & DW2 were examined on behalf of the opposite party. The expert appointed by the Forum has filed commission report and it is marked as Ext.C1.
4. On the contentions raised, the following issues arise for consideration:
Whether the complainant comes under the definition of Consumer as enunciated in the Consumer Protection Act? Whether there is any deficiency in service on the part of the opposite party? Whether the complainant is entitled for any of the reliefs claimed?
5. Point No: (i) : One of the contentions raised by the opposite party is that the complainant has been treated and operated at Tirunelveli free of cost and hence the complainant cannot be termed as a consumer as defined under the Consumer Protection Act and the complaint is not maintainable before this Forum. The complainant has pleaded that she had paid a sum of Rs.500/- and as such the service rendered to the complainant is a service as defined in the Consumer Protection Act. Ext. P5 produced on behalf of the complainant proves the payment of Rs.500/- by the complainant to the opposite party hospital on 4/7/2002. Moreover, the Hon'ble Supreme Court in Indian Medical Association Vs. V.P. Shantha & Othrs.reported in 1986 – 1996 con.1569 (NS), produced on behalf of the complainant, while considering the question of medical negligence held that services rendered at a non-government hospital/nursing home, where charges are required to be paid by persons, who are in a position to pay and persons who cannot afford to pay the same are rendered service free of charge would fall within the ambit of the expression 'service' as defined in Sec 2(1)(o) of the Act irrespective of the fact that the 'service' is rendered free of charge to persons who are not in a position to pay for such services. It was held that in such a situation 'free service' would also be a 'service and the recepient would be a consumer' under the Act. From the above decision even if the contention advanced by the learned counsel from the opposite party that no payment was received by the opposite party is accepted, even then it is not the case of the opposite party that they are rendering free service to all and not charging any fees from anyone whether rich or poor.
6. In the light of the above discussion, it is found that the complainant is a consumer as per the Consumer Protection Act.
7. Point No.(ii) : The specific case of the complainant is that in the eye camp conducted at Attukal, Thiruvananthapuram on 4/7/2002, the complainant consulted a Physician of the opposite party available at the said eye camp for treating defective vision in her left eye. As assured by the opposite party and as per their advice the complainant conceded for the operation. According to the complaint, after the operation the complainant had made complaint of excruciating pain in the operated eye but till the date of discharge on 16/7/2002, she did not get any relief which according to the complainant is due to the irresponsible and negligent act of the Physicians of opposite party. As advised, at the time of discharge, the complainant visited the hospital on 1/8/2002 for review and on opening the dressing of the operated eye there was total loss of vision quite contrary to the assurance made by the opposite party. The complainant further alleges that no reasonable care and attention was given during her treatment which ultimately resulted in total loss of vision in the left eye of the complainant.
8. Opposite party denies the said allegation and contended that the defect in the left eye had occurred due to the negligence and careless handling of the eye by the complainant. At this juncture, the aspect to be considered is whether the defect has occurred due to the negligence of the complainant or the opposite party.
9. According to the opposite party, the complainant was given proper care. The day after the surgery the complainant had signs of endophthalmitis, in her left eye, like lid edema, purulent discharge, corneal edema, severe anterior chamber reaction and no red fungal flow and this infection had occurred due to the negligence of the patient. According to the opposite party, she was immediately seen by 2 senior doctors. A conjunctival smear and a vitreous tap was taken for microbiological evaluation. Intravitreal vancomycin and amikacin were given along with topical fortified tobramycin eye drop. Tab.Diamox twice daily ½ tab, T.Orthobid 1 tid, Homide eye drop twice and Inj.Cifran 100 ml iv. The microbiology reports showed bacillus species, which grew in culture from the conjunctival smear and the vitreous tap. She was discharged when the infection was getting controlled and she was discharged on 16/7/2002 with Ciptox eye drop, Timolol 0.5% eye drop, cyclopent eye drop, Ciplox eye ointment at night, T.Diamox ½ BD, T.Voveran according to the culture and sensitivity reports. From the above, what is to be ascertained is whether the opposite party has provided proper care to treat the infection and whether the said medical treatment given is sufficient and proper for such a patient who had undergone the said operation. The Ext.C1 report filed by the Commissioner has to be looked into at this juncture. Ext.C1, throws light into as to the treatments and administration of medicines to the complainant. The commissioner has reported after examining the copy of the hospital records that, cataract surgery has been done in a patient who actually had no cataract. A person whose visual defect which could have been corrected by spectacles and which improved with spectacles was subjected to an untimely surgery. Further more, he has reported that there is found to be lack of pre-operative management like not using antibiotics either locally or systematically before the surgery. DW1 has deposed that 'we applied antibiotic drops also as pre-operative measure'. As per the report of the Commissioner there is no evidence anywhere in the records to show that it had been used. Moreover DW1 has deposed that 'At the camp site itself we started using antibiotic drops. But we have not mentioned it in the case sheet'. According to the commissioner, use of antibiotics eye drops locally in the eye one or 2 days prior to the surgery is a practice usually adopted before eye surgeries which prevents exogenous infection (infection from external surroundings) and takes care of any micro organisms if at all present in the conjunctival back. Though the commissioner has reported that appropriate antibiotics and other medications had been administered after the patient had developed the infection, he further reports that as per the records, the complainant was discharged from the hospital before the eye had completely healed. According to the Commissioner a few more days stay in the hospital would have minimized the suffering and anxiety of the patient.
10. The opposite party's counsel had argued that the complainant never turned up for review on 1/8/2002 and after a long lapse of 7 months, the complainant has issued a lawyer's notice in between these period, the complainant has never contacted the opposite party. We have perused the records and the complainant has failed to prove and enlighten this Forum with regard to the review on 1/8/2002 has been attended by the complainant or not. But the Commissioner has reported that there is lack of pre-operative management like not using antibiotics locally or systematically before the surgery and there is no evidence anywhere in the records to show that it had been used. The above mentioned being the finding of the expert doctor as per Ext. C1, the aspect of review has no significance because the negligence has been attributed in the pre-operative stage and not in the post-operative management. The expert commissioner has not been cross examined. The opposite party has filed an affidavit denying the conclusions and the report of the expert commissioner, but they have failed to corroborate the same by examining the commissioner. If at all the opposite party had any objection to the Commission report the onus was on them to take appropriate steps for examining the expert, which has not been proceeded with in this complaint. As far as this Forum is concerned since this being a case of medical negligence we cannot go beyond the report of the expert commissioner which stands unchallenged.
11. In the above circumstance, it is found that the opposite party has failed to provide pre-operative care to the complainant and has conducted the operation without following the general administration of medicines systematically before the surgery. PW1 has deposed that the treatment was free, she had to spend Rs.500/- for the Intra Occular lens only. PW1 has deposed that she was taken to the opposite party's hospital at Tirunelveli from Thiruvananthapuram in opposite party's vehicle for which no amount has been paid, further she has deposed that no payment was made for room also. On going through the entire records and the pleadings, it is found that the complainant has spend 16 days in the hospital without any payment towards room rent. It is found that the opposite party is not engaged in a profit motive venture and there is nothing on record which goes to prove that the opposite party has financially exploited the complainant. The generous attitude of the opposite party has to be taken into consideration. We have been convinced that the opposite party had no intention to exploit the complainant. But it is a fact that the complainant has suffered due to the vision problem on her left eye for which she has to be compensated. Considering the above discussions and taking into consideration the age of the complainant, we find that an amount of Rs.25,000/- would be reasonable towards the same.
In the result, the opposite party shall pay an amount of Rs.25,000/- (Rupees twentyfive thousand only) towards compensation and Rs.2,000/- (Rupees two thousand only) towards cost of the proceedings. Time for compliance 2 months from the date of receipt of the order, failing which the above amounts shall carry interest @ 9%.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 16th day of February, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
O.P.No.343/2003 APPENDIX
I. Complainant's witness:
PW1 : Thankamma
II. Complainant's documents:
P1 : Original discharge summary of O.P.No.96, IP No.121466 dt. 16/7/2002 P2 : Copy of discharge summary P3 : Copy of advocate notice dated 25/2/2003 P4 : Copy of reply notice dated 12/3/2003 P5 : Receipt No.7334 dated 4/7/2002 for Rs.500/-
III. Opposite party's witness:
DW1 : Dr. M. Sreenivasan
DW2 : Dr. Maneksha
IV. Opposite party's documents: NIL
PRESIDENT
ad. BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P. No: 343/2003 Filed on 25/8/2003 Dated : 16..02..2009
Complainant:
Thankamma, Mohan Vihar, Maruthoorkadavu, Kalady, Karamana-P.O., Thiruvananthapuram. (By Adv. S. Rajagopalan Nair)
Opposite party:
Aravind Eye Hospital and Post Graduate Institute of Ophthalmology, S.N.High Road, Thirunelvei-627 001. Represented by its Director. (By Adv. R. Rajasekharan)
This O.P having been heard on 31..01..2009, the Forum on 16..02..2009 delivered the following:
ORDER
SMT.S.K. SREELA, MEMBER:
The brief facts of the case are as follows: The complainant who is a poor old woman had difficulty in her vision in the left eye. The opposite party Aravind Eye Hospital and Post Graduate Institute of Ophthalmology represented by its Director conducted, an Eye camp at Attukal in Trivandrum on 4/7/2002. The complainant consulted a Physician of the opposite party, who was available at the said Eye camp on 4/7/2002 vide O.P.No. 96 for treating defective vision in her left eye. On consultation, the Physician of the opposite party told the complainant that complainant was suffering from Cataract for which she was advised to undergo an operation in the left eye so as to improve the vision in that eye. It was assured at the camp that her vision would be improved after the operation. Accordingly complainant was admitted in the opposite party's hospital and the surgery was done on 5/7/2002 and a PC 10L was said to have been implanted. The complainant was told that the operation was successful and the vision in the left eye would improve on opening the dressing of the left eye. But consequent on this operation, the complainant was suffering from excruciating pain in the operated left eye. Though the complainant had made complaint about this pain with the Physician of the opposite party, she did not get any relief from such pain till she was discharged from the hospital on 16/7/2002. Had proper care and service given to the complainant, she would have been relieved from such excruciating pain. But the complainant had to suffer a lot of pain due to the irresponsible and negligent act of the opposite party. At the time of discharge, the complainant was advised to visit the hospital on 1/8/2002 for a review. The complainant had been following the treatment strictly in accordance with the instruction, prescription and advice of the physicians even from the very inception of the treatment. However, there was no relief from the pain. The complainant was under hope that normalcy would be restored. The complainant visited the hospital on 1/8/2002 for review as advised with the hope that the vision would improve. On opening the dressing of the left eye on the date of review, it ws noticed to the shock and surprise of the complainant that there was total loss of vision quite contrary to what was assured and consoled by the Physicians of the opposite party. There was no explanation from the concerned physician for this. It is clear that no reasonable care and attention was given to the complainant while she was under treatment of the opposite party. The treating Surgeon in the opposite party's hospital failed to provide services and care to the complainant. The surgeon was duty bound to exercise reasonable care in carrying out professional skill, diagnosis, advice, surgery and treatment. There was culpable negligence and lack of due and caution in performing operation and in administering treatment to the complainant. That was why the complainant had suffered excrutiating pain consequent on operation which ultimately resulted in the total loss of vision in the left eye of the complainant. Apparently the opposite party failed to provide services and care to the complainant as cast upon the opposite party and as a result the complainant lost eye sigt in the left eye. There is deficiency of service and culpable negligence. Hence this complaint for compensation and costs.
2. The opposite party has filed version contending as follows: It is admitted that the complainant was examined for her eye defect at Kalady in Thiruvananthapuram. But the allegation that the physician who examined the complainant told her that her vision would improve after the operation and that resulted in filing of the present complaint at Thiruvananthapuram is not correct and the opposite party submits that the patient was treated only at Thirunelveli and the operation was done only at Thirunelveli and this Forum has no territorial jurisdiction to entertain this complaint. The comnplainant was examined at the eye camp and was also treated and operated at Thirunelveli at free of cost and hence the complainant cannot be termed as a Consumer as defined under the Act. Hence on that ground also the complaint is not maintainable before this Forum. The patient was aged 65 years and her left eye vision prior to surgery was 6/24p. All the relevant investigations were done before the cataract surgery. She was operated for cataract in her left eye on 5/7/2002 and a PC intra occular lens was also implanted. The next day of the surgery, she had in her left eye signs of endophthalmitis, like lid edema, purulent discharge, corneal edema, severe anterior chamber reaction and no red fungal flow. The infection is due to the negligence of the paient, which may occur for various reasons. The allegation that the complainant did not get any relief from such pain till she was discharged is not correct. The further allegation that if proper care and service were given to the complainant she would have been relieved from such pain is also not correct. Due to the careless handling of the eye by her and negligence the above defect had occured in the left eye. The allegation that she was not given proper care is also false. She was also immediately seen by two other senior doctors. A conjunctival smear and a vitreous tap was taken for microbiological evaluation. Intravitreal vancomycin and amikacin were given along with topical fortified tobramycine eye drop, fortified cephazoline eye drop, Tab.Diamox twice daily ½ tab, T.Orthobid 1 tid, Homide eye drop twice and Inj.Cifran 200ml iv. On 6/7/2002 she was examined by senior doctors. The microbiology reports showed bacillus species, which grew in culture from the conjunctival smear and the vitreous tap. On 7/7/2002, she was seen twice and appropriate treatment continued till 16/7/2002 when she was discharged the infection was getting controlled and her vision was perception of light. She was discharged on 16/7/2002 with Ciplox eye drop, Timolol 0.5% eye drop, cyciopent eye drop, Ciplox eye ointment at night,T.Diamox ½ BD, T.Voveran according to the culture and sensitivity reports. She was seen by all senior surgeons of Aravind Eye Hospital, Tirunelveli including the Chief Medical Officer and utmost care has been taken to treat the infection which occurred in her left eye. The doctor who operated had done number of such operations and there was no negligence or incompetence on that part of the surgery or in the post operative care. The allegation that the complainant has been following the treatment strictly in accordance with the instructions and prescriptions is not correct. If she had followed the advise of the doctors, the infection would not have occurred. The surgeon of the opposite party has done their best and the hospital does not differentiate between a poor woman and a rich woman. The infection may be caused due to several factors such as lack of hygienic habits like improper cleaning of the hands before applying drops on the operated eye, general hygiene of the patient etc...committed by the patient. No false allegation is made on the complainant since proper care was taken by the opposite party. The treatment proposed and given is seen from the case sheet. There was no compulsion for the operation and the patient herself wanted surgery. Even prior to the operation the vision was 6/24p, which is equallent to loss of vision. The alleged loss of the eye sight in the left eye is not due to fault of the opposite party. There is no deficiency of service. Hence opposite party prays for dismissal of the complaint.
3. Complainant has been examined as PW1, marked Exts. P1 to P5. DW1 & DW2 were examined on behalf of the opposite party. The expert appointed by the Forum has filed commission report and it is marked as Ext.C1.
4. On the contentions raised, the following issues arise for consideration:
Whether the complainant comes under the definition of Consumer as enunciated in the Consumer Protection Act? Whether there is any deficiency in service on the part of the opposite party? Whether the complainant is entitled for any of the reliefs claimed?
5. Point No: (i) : One of the contentions raised by the opposite party is that the complainant has been treated and operated at Tirunelveli free of cost and hence the complainant cannot be termed as a consumer as defined under the Consumer Protection Act and the complaint is not maintainable before this Forum. The complainant has pleaded that she had paid a sum of Rs.500/- and as such the service rendered to the complainant is a service as defined in the Consumer Protection Act. Ext. P5 produced on behalf of the complainant proves the payment of Rs.500/- by the complainant to the opposite party hospital on 4/7/2002. Moreover, the Hon'ble Supreme Court in Indian Medical Association Vs. V.P. Shantha & Othrs.reported in 1986 – 1996 con.1569 (NS), produced on behalf of the complainant, while considering the question of medical negligence held that services rendered at a non-government hospital/nursing home, where charges are required to be paid by persons, who are in a position to pay and persons who cannot afford to pay the same are rendered service free of charge would fall within the ambit of the expression 'service' as defined in Sec 2(1)(o) of the Act irrespective of the fact that the 'service' is rendered free of charge to persons who are not in a position to pay for such services. It was held that in such a situation 'free service' would also be a 'service and the recepient would be a consumer' under the Act. From the above decision even if the contention advanced by the learned counsel from the opposite party that no payment was received by the opposite party is accepted, even then it is not the case of the opposite party that they are rendering free service to all and not charging any fees from anyone whether rich or poor.
6. In the light of the above discussion, it is found that the complainant is a consumer as per the Consumer Protection Act.
7. Point No.(ii) : The specific case of the complainant is that in the eye camp conducted at Attukal, Thiruvananthapuram on 4/7/2002, the complainant consulted a Physician of the opposite party available at the said eye camp for treating defective vision in her left eye. As assured by the opposite party and as per their advice the complainant conceded for the operation. According to the complaint, after the operation the complainant had made complaint of excruciating pain in the operated eye but till the date of discharge on 16/7/2002, she did not get any relief which according to the complainant is due to the irresponsible and negligent act of the Physicians of opposite party. As advised, at the time of discharge, the complainant visited the hospital on 1/8/2002 for review and on opening the dressing of the operated eye there was total loss of vision quite contrary to the assurance made by the opposite party. The complainant further alleges that no reasonable care and attention was given during her treatment which ultimately resulted in total loss of vision in the left eye of the complainant.
8. Opposite party denies the said allegation and contended that the defect in the left eye had occurred due to the negligence and careless handling of the eye by the complainant. At this juncture, the aspect to be considered is whether the defect has occurred due to the negligence of the complainant or the opposite party.
9. According to the opposite party, the complainant was given proper care. The day after the surgery the complainant had signs of endophthalmitis, in her left eye, like lid edema, purulent discharge, corneal edema, severe anterior chamber reaction and no red fungal flow and this infection had occurred due to the negligence of the patient. According to the opposite party, she was immediately seen by 2 senior doctors. A conjunctival smear and a vitreous tap was taken for microbiological evaluation. Intravitreal vancomycin and amikacin were given along with topical fortified tobramycin eye drop. Tab.Diamox twice daily ½ tab, T.Orthobid 1 tid, Homide eye drop twice and Inj.Cifran 100 ml iv. The microbiology reports showed bacillus species, which grew in culture from the conjunctival smear and the vitreous tap. She was discharged when the infection was getting controlled and she was discharged on 16/7/2002 with Ciptox eye drop, Timolol 0.5% eye drop, cyclopent eye drop, Ciplox eye ointment at night, T.Diamox ½ BD, T.Voveran according to the culture and sensitivity reports. From the above, what is to be ascertained is whether the opposite party has provided proper care to treat the infection and whether the said medical treatment given is sufficient and proper for such a patient who had undergone the said operation. The Ext.C1 report filed by the Commissioner has to be looked into at this juncture. Ext.C1, throws light into as to the treatments and administration of medicines to the complainant. The commissioner has reported after examining the copy of the hospital records that, cataract surgery has been done in a patient who actually had no cataract. A person whose visual defect which could have been corrected by spectacles and which improved with spectacles was subjected to an untimely surgery. Further more, he has reported that there is found to be lack of pre-operative management like not using antibiotics either locally or systematically before the surgery. DW1 has deposed that 'we applied antibiotic drops also as pre-operative measure'. As per the report of the Commissioner there is no evidence anywhere in the records to show that it had been used. Moreover DW1 has deposed that 'At the camp site itself we started using antibiotic drops. But we have not mentioned it in the case sheet'. According to the commissioner, use of antibiotics eye drops locally in the eye one or 2 days prior to the surgery is a practice usually adopted before eye surgeries which prevents exogenous infection (infection from external surroundings) and takes care of any micro organisms if at all present in the conjunctival back. Though the commissioner has reported that appropriate antibiotics and other medications had been administered after the patient had developed the infection, he further reports that as per the records, the complainant was discharged from the hospital before the eye had completely healed. According to the Commissioner a few more days stay in the hospital would have minimized the suffering and anxiety of the patient.
10. The opposite party's counsel had argued that the complainant never turned up for review on 1/8/2002 and after a long lapse of 7 months, the complainant has issued a lawyer's notice in between these period, the complainant has never contacted the opposite party. We have perused the records and the complainant has failed to prove and enlighten this Forum with regard to the review on 1/8/2002 has been attended by the complainant or not. But the Commissioner has reported that there is lack of pre-operative management like not using antibiotics locally or systematically before the surgery and there is no evidence anywhere in the records to show that it had been used. The above mentioned being the finding of the expert doctor as per Ext. C1, the aspect of review has no significance because the negligence has been attributed in the pre-operative stage and not in the post-operative management. The expert commissioner has not been cross examined. The opposite party has filed an affidavit denying the conclusions and the report of the expert commissioner, but they have failed to corroborate the same by examining the commissioner. If at all the opposite party had any objection to the Commission report the onus was on them to take appropriate steps for examining the expert, which has not been proceeded with in this complaint. As far as this Forum is concerned since this being a case of medical negligence we cannot go beyond the report of the expert commissioner which stands unchallenged.
11. In the above circumstance, it is found that the opposite party has failed to provide pre-operative care to the complainant and has conducted the operation without following the general administration of medicines systematically before the surgery. PW1 has deposed that the treatment was free, she had to spend Rs.500/- for the Intra Occular lens only. PW1 has deposed that she was taken to the opposite party's hospital at Tirunelveli from Thiruvananthapuram in opposite party's vehicle for which no amount has been paid, further she has deposed that no payment was made for room also. On going through the entire records and the pleadings, it is found that the complainant has spend 16 days in the hospital without any payment towards room rent. It is found that the opposite party is not engaged in a profit motive venture and there is nothing on record which goes to prove that the opposite party has financially exploited the complainant. The generous attitude of the opposite party has to be taken into consideration. We have been convinced that the opposite party had no intention to exploit the complainant. But it is a fact that the complainant has suffered due to the vision problem on her left eye for which she has to be compensated. Considering the above discussions and taking into consideration the age of the complainant, we find that an amount of Rs.25,000/- would be reasonable towards the same.
In the result, the opposite party shall pay an amount of Rs.25,000/- (Rupees twentyfive thousand only) towards compensation and Rs.2,000/- (Rupees two thousand only) towards cost of the proceedings. Time for compliance 2 months from the date of receipt of the order, failing which the above amounts shall carry interest @ 9%.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 16th day of February, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
O.P.No.343/2003 APPENDIX
I. Complainant's witness:
PW1 : Thankamma
II. Complainant's documents:
P1 : Original discharge summary of O.P.No.96, IP No.121466 dt. 16/7/2002 P2 : Copy of discharge summary P3 : Copy of advocate notice dated 25/2/2003 P4 : Copy of reply notice dated 12/3/2003 P5 : Receipt No.7334 dated 4/7/2002 for Rs.500/-
III. Opposite party's witness:
DW1 : Dr. M. Sreenivasan
DW2 : Dr. Maneksha
IV. Opposite party's documents: NIL
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
