BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 01/2007 Filed on 02.01.2007

Dated : 30.11.2011

Complainant :

1. D.K. Raj, ARRA 28, Avittom Road, Kumarapuram, Thiruvananthapuram.

    

Additional Complainant :

2. Mabel James, D/o late D.K. Raj, ARRA 28, Avittom Road, Kumarapuram, Thiruvananthapuram.

(By adv. K. Kesavan Nair)

Opposite parties :

1. Divya Prabha Eye Hospital, Kumarapuram, Medical College P.O, Thiruvananthapuram.

    

2. Dr. Susheela Prabhakaran, Chief Consultant, Divya Prabha Eye Hospital, Kumarapuram, Medical College P.O, Thiruvananthapuram.

    

3. Dr. Devin Prabhakar, Divya Prabha Eye Hospital, Kumarapuram, Medical College P.O, Thiruvananthapuram.

(By adv. P.A Dev)

This O.P having been taken as heard on 30.09.2011, the Forum on 30.11.2011 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that 1^st complainant was examined by 2^nd and 3^rd opposite parties, Dr. Susheela Prabhakaran, and Dr. Devin Prabhakar of the 1^st opposite party, Divya Prabha Eye Hospital, that on examination 1^st complainant was advised to undergo a surgery on his right eye and the same was done on 16.05.2006 by the 2^nd opposite party for which opposite parties had collected a sum of Rs. 16,500/- by way of package charges for the cataract surgery, that opposite parties had assured the 1^st complainant that his eye sight would be recovered and would be more clear after the surgery and it was believing the opposite parties complainant had agreed for the surgery. Complainant was examined further on 17.05.2006, 18.05.2006, 24.05.2006 and on 31.05.2006, that it was observed that 1^st complainant had lost his eye sight on the right side when the bandages were removed, that there was no improvement in the condition, that though this fact was informed to the 2^nd and 3^rd opposite parties they had neglected the complaints of the complainant and had instructed him to continue the medicines, that thereafter complainant wanted to consult another eye specialist Dr. Meena Chakrabarthi and for that a reference letter was sought from the opposite parties and contacted Dr. Meena Chakrabarthi on 05.06.2006, that complainant was told that the lens that was implanted in the hospital of opposite parties 2 & 3 was not properly done and he was advised to undergo another surgery for regaining the eye sight and accordingly complainant underwent surgery on 06.06.2006 at Medical Mission Hospital, Pongummoodu, under the advice and supervision of Chakrabarthi Eye Care Centre, that after the said surgery eye sight of the complainant was regained. Complainant had suffered great mental agony and other inconveniences apart from financial loss from the actions of the opposite parties. Hence this complaint to direct opposite parties to refund a sum of Rs. 16,500/- with 12% interest from 16.05.2006 along with a compensation of Rs. 1,00,000/- to the complainant.

Opposite parties filed version contending interalia that 1^st complainant was first seen in the 1^st opposite party hospital on 05.05.2006 and he was examined first by the 3^rd opposite party and then the 2^nd opposite party and it was diagnosed with Grade III Nuclear Sclerosis in right eye and Grade-II Nuclear Sclerosis in the left eye, that complainant was advised to undergo a cataract surgery in the right eye, the benefits and also risks of surgery were explained in detail to the complainant, to his daughter and son-in-law, that complainant was given a copy of the pamphlet titled “തിമിര ശസ്ത്രക്രിയ” . Complainant and his relatives signed the consent form stating that they had understood the complications of surgery including loss of life. Complainant underwent phaco surgery with foldable lens implementation in right eye on 16.05.2006 by the 2^nd opposite party and he was subsequently examined on 17.05.2006, 18.05.2006 and 24.05.2006 by opposite parties 2 & 3, that on examination the 1^st complainant patient was diagnosed to require a second surgery by a vitreo rectinal surgeon and hence was referred for the same to Dr. Meena Chakrabarthi on 31.05.2006, that complainant was given a reference letter also to the said doctor by the 3^rd opposite party, that 2^nd opposite party informed Dr. Meena Chakrabarthi on telephone about the prior medical history of the complainant in detail, that complainant's statement that after the surgery at Medical Mission Hospital the eye sight of the complainant was regained which was lost due to the negligence of the opposite parties is absolutely baseless and hence denied, that the very fact that complainant has regained vision after surgery shows that the first surgery was done perfectly well, otherwise he would not have regained vision after the second surgery. There is no negligence on the part of the opposite parties in conducting the eye surgery on the complainant, that 2^nd opposite party is the Founder Director of Regional Institute of Ophthalmology and was the Professor of Ophthalmology in Thiruvananthapuram Medical College, that 2^nd opposite party is a specialist in Anterior Segment Surgery including cataract surgery and has been trained in Moor Fields Eye Hospital, U.K, that the 3^rd opposite party has undergone formal training in cataract surgery at Sankara Nethralaya Chennai and is a fellow of the Royal College of Physicians and Surgeries of Glasgow, U.K, and that the 1^st opposite party hospital is well renowned not only for the excellent quality of care but very cordial doctor-cum-patient relationship. It is true that opposite parties issued a bill for Rs. 16,500/- to T.T.K Health Care by way of package charges for the cataract surgery. These charges are comparable to charges by other hospitals. There was no negligence or wilful omission on the part of the opposite parties. Opposite parties treated the complainant on the basis of clinical features and investigations with all reasonable care and caution by applying professional skill reasonably to be expected. Hence opposite parties prayed for dismissal of the complaint with costs.

The points that arise for consideration are:-

1. Whether there is negligence and deficiency in service on the part of opposite parties in conducting surgery on the first complainant?

2. Whether the complainant is entitled to compensation? If so, to what quantum?

3. Whether the complainant is entitled to costs?

In support of the complaint, the son-in-law of the 1^st complainant has filed proof affidavit as PW1 and has marked Ext. P1 to P8. One witness has been examined from the side of the complainant as PW2. In rebuttal 2^nd opposite party has filed affidavit and has marked Exts. D1 and D2.

Points (i) to (iii):- There is no dispute on the point that 1^st complainant was examined by the opposite parties and complainant was advised to undergo a cataract surgery in the right eye. There is no point in dispute that complainant underwent the said surgery with foldable lens implementation in the right eye on 16.05.2006 by the 2^nd opposite party. Admittedly, the 1^st complainant was subsequently examined on 17.05.2006, 18.05.2006 and 24.05.2006 by 2^nd and 3^rd opposite parties. It has been the case of the 1^st complainant that after the above said surgery he had lost his eye sight on the right side and there was no improvement in the condition even after repeated visits to opposite parties 2 & 3. It has also been the case of the complainant that as there was no hope of any help from the opposite parties, he wanted to consult another eye specialist Dr. Meenu Chakrabarthi. It has also been the case of the complainant that opposite parties had never advised the complainant to undergo a second surgery and had never referred him to Dr. Meenu Chakrabarthi. Complainant's evidence consisted of the oral testimony of PW1 and PW2 and Exts. P1 to P8. PW1 was impleaded as additional complainant as the 1^st complainant expired on 23.02.2009. PW1 is the son-in-law of the 1^st complainant. In his cross examination PW1 has deposed that daughter of the deceased 1^st complainant is the legal heir of the 1^st complainant. PW1 has further deposed that he has not seen the pamphlet issued by the opposite parties. PW1 has deposed that patient and his relatives have signed the consent form marked as Ext. D1. On being asked as to whether Dr. Meenu Chakrabarthi had informed that the second operation was necessitated due to the failure of the first operation done by opposite parties, PW1 said that it has been reported in Ext. P4 as dislocated lens. Dr. Meenu Chakrabarthi has been examined as PW2. When asked about what is cataract, PW2 stated that “കണ്ണിന്‍റെ ഉള്ളിലെ crystalline lens clear ആയിട്ടാണ് ഇരിക്കുന്നത്. അതിന്‍റെ clarity പോയി cloudy ആകുന്ന അവസ്ഥയാണ് cataract. Cataract surgery എന്നാല്‍ എന്താണ്? Cloudy ആയിട്ടുള്ള lens മാറ്റിയിട്ട് artificial lens implant ചെയ്യുന്നതാണ് cataract surgery. PW2 has admitted that the 1^st complainant had approached her on 02.06.2006 and on 05.06.2006 the 1^st complainant was admitted and discharged on 07.06.2006. PW2 has further deposed that as there was no IP in her eye care centre 1^st complainant was admitted in an institution where there is facility for surgery. Surgery was done on 1^st complainant on 06.06.2006. PW2 has admitted Ext. P4 discharge summary and instructions issued by Chakrabarthi Eye Care Centre. In her chief examination PW2 has deposed that the patient was referred by Dr. Susheela Prabhakaran who had also contacted her on telephone. In her chief examination PW2 has depoosed that the patient had never disclosed anything in connection with the loss of eye sight due to the cataract surgery performed by the 2^nd opposite party. On being asked as to whether the patient had eye sight when contacted PW2, PW2 said the patient was able to read the first line out of the 8 lines chart while conducting vision test. PW2 has deposed further that the the line read by the patient was the line of big letters in the vision chart. Asked on percentage of vision, PW2 said there was 50% vision in the right eye. Asked on loss of vision of the patient, PW2 said ordinarily, after vision test, she has done 2 other tests like slit lamp biomicroscopy and dialated fundus evaluation. Moreover Dr. Susheela Prabhakaran informed her that the lens of the patient is not in position and dislocated. PW2 deposed further that on examination no other abnormality was found, thereby PW2 came to the conclusion that the vision of the patient was not clear due to lens dislocation. She has admitted the suggestion put by the complainant that the patient was advised an urgent rectification surgery. It was a planned procedure. On suggestion that this rectification surgery was necessitated due to failure of the first surgery of the opposite parties, PW2 deposed that it cannot be said as negligence or failure. Witness adds as a routine whenever a cataract surgery is done anywhere in the world by any expert there is possibility of 0.3 to 0.4% dislocation of IO lens. This can come at any stage either during the course of surgery, post operative period or at any time thereafter. While implanting lens surgery would be closed after confirming that the lens position was in order, PW2 has said that after implanting lens the doctor would dial the lens. If the lens is in position then only surgery would be closed. Otherwise lens will be removed at that time. This is the standard procedure. PW2 denied the suggestion put forth by the complainant that even after observing that lens was dislocated opposite party closed the surgery which would amount to negligence of opposite parties. PW2 has deposed further that it was the patient who had handed over the referral letter to her. She has further admitted that after the said rectification surgery complainant was able to read 5 lines out of the 8 lines chart. Thereafter 1^st complainant's ability improved and he was able to read 6 lines. When asked whether patient's vision would improve further, PW2 said the patient was aged and she has not made any follow up. Age related problems can also come. When suggested that in Ext. P4 it is seen written lens dislocated, thereby it would mean that lens was not in proper place nor as per proper procedure, PW2 said it can be said that lens was not in proper place, but it cannot be said that it was done not as per accepted procedure. According to PW2 this is a known complication. She has attended a lot of similar complications in her 18 years experience. PW2 has deposed further that even when surgery was 100% success lens may be dislocated. PW2 has further deposed that even when lens was folded it would spontaneously come in original shape. PW2 has asserted that there was no defect in the implantation of lens of the patient and hence there was no problem. PW2 has further deposed that discomfort and pain would come during the post operative period. PW2 has further deposed that post operative discomfort was not in connection with lens implantation but in relation with wound. PW2 has added further that it was because the initial surgery was proper and she could implant the lens well. If initial surgery was complicated she could not implant the lens subsequently. PW2 denied the suggestion that she has deposed before the court with an intention to protect their friends/opposite parties from the case. PW2 has asserted that her deposition is based on her experience, medical literature and findings. In her cross examination by opposite parties she has admitted that opposite parties have referred several cases like this to her and there are similar cases of second surgery as alleged herein. On suggestion by opposite parties that the first surgery was conducted by doctors in accordance with the standard guidelines, PW2 said it is correct. If surgery was complicated she could not implant the lens in the eye of the patient. Ext. P1 is the diagnosis cum discharge sheet. Ext. P2 is the package charges for ophthalmology procedures issued by opposite parties. Ext. P3 is the treatment sheet. Ext. P4 is the discharge summary. Ext. P5 is the bill issued by Medical Mission Hospital. Ext. P6 is the copy of advocate notice. Ext. P7 is the reply notice to Ext. P6. Ext. P8 is the copy of the newspaper dated 28.09.2008. In rebuttal, opposite parties' evidence consisted of affidavit of the 2^nd opposite party as DW1 and Ext. D1 and D2. Ext. D1 is the copy of the consent form for surgery and Ext. D2 is the pamphlet issued by opposite parties. DW1 has been cross examined by the complainant. DW1 has deposed that the second surgery was not due to the negligence on the part of the opposite parties. Admittedly, the opposite party has conducted the first surgery and they performed their duties to best of their ability and with due care and caution. There was no negligence or omission on the part of the opposite party. Opposite party had treated the complainant on the basis of clinical features and investigations with all reasonable care and caution by applying professional skill reasonably be accepted. Opposite parties are in no way responsible or liable for the mental agony, shock and expenses alleged by the complainant. The complaint is filed without any bonafides. Admittedly, during the course of the proceedings 1^st complainant died and the daughter of the deceased was impleaded as additional complainant. The proof affidavit on behalf of the 1^st complainant was filed by the son-in-law of the 1^st complainant. The main point to be decided herein is whether there is any negligence and deficiency in service on the part of the opposite parties. Though complainant has examined PW2 doctor, nothing was brought out from PW2 to prove that there was negligence or lapses on the part of the opposite parties in treating or conducting surgery on the 1^st complainant. It should be noted that PW1 is not competent to speak about medical negligence nor has the complainant furnished any document to show that the procedure adopted by opposite parties in treating the 1^st complainant was not proper. Nowhere in the deposition of PW2 is it mentioned that opposite parties had acted against the standard procedure or accepted procedure. It is to be noted that PW2 has deposed that it was only because the first surgery was proper she could succeed the second surgery. It has been the settled law that simply because a patient has not favourably responded to a treatment given by a doctor or surgery has failed, the doctor cannot be held straight away liable to medical negligence applying the doctrine res ipsa loquiter. Opposite party has not adduced expert opinion, but cross examined PW2. The stance of the opposite party is that there was no negligence on their part in conducting the first surgery. Complainant has alleged negligence on the part of opposite parties in the first surgery and argued that it was only because of the failure of the first surgery due to the negligence of the opposite parties second surgery was necessitated. The doctor who had conducted the second surgery has been examined by the complainant. Though PW2 has been examined in chief at length nothing has been brought out from the doctor to establish that the allegation raised by the complainant against opposite parties is genuine and correct. It is to be noted that it was the bounden duty of the complainant to establish the case that due to the negligence of the opposite parties complainant was forced to conduct the second surgery. It is to be noted that in a complaint for damages on account of negligence the onus lies on the complainant/patient to prove that the doctor was negligent and the negligence resulted in the injury which is complained to be compensated. Basically medical negligence denotes such negligence resulting from the failure on the part of the doctor or hospital to act in accordance with the medical standards which are being practiced by an ordinarily and reasonably competent man practicing the same art. Once a doctor accepts a patient this principle is applicable. It may be stated that to establish negligence on the part of the opposite party, the claimant must show (a) what is the standard care; (b) on the facts of the case, that opposite party's conduct fell below that standard; and (c) that the same had resulted to some injury to the patient. In this case opposite parties have admitted the first surgery. They have filed proof affidavit with documents. Opposite parties have stated that they acted in accordance with the accepted care and competence. Opposite party has been cross examined. PW2 is a doctor whose opinion is the basis for determining medical negligence in this case along with documents furnished by both parties. PW2 has never stated that there was any negligence from the opposite parties in conducting the first surgery. Rather PW2 has deposed that it was because the first surgery was proper she could perform the second surgery well. Complainant has not established their case that there was negligence on the part of the opposite parties in conducting the first surgery on the first complainant. In cases claiming compensation for medical negligence, the negligence has to be established and cannot be presumed. In this case negligence is not established. As regards treatment it is proved that opposite party has taken reasonable care and caution in giving treatment to 1^st complainant to best of their ability and knowledge of the subject and have acted in good faith in the interest of the health of the patient. There is no material before us to prove otherwise. In view of the above and evidence available on records, we find opposite parties are not guilty of medical negligence. Complaint has no merits at all which deserves to be dismissed.

In the result, the complaint is dismissed. Parties are left to bear and suffer their respective costs.

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, this the 30^th day of November 2011.

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G. SIVAPRASAD : PRESIDENT

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BEENAKUMARI. A : MEMBER

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S.K. SREELA : MEMBER

jb

C.C. No. 01/2007

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - James P.R

PW2 - Dr. Meena Chakrabarthi

II COMPLAINANT'S DOCUMENTS :

P1 - Diagnosis cum discharge sheet.

P2 - Package charges for ophthalmology procedures

P3 - Treatment sheet

P4 - Discharge summary

P5 - Bill issued by Medical Mission Hospital.

P6 - Copy of advocate notice

P7 - Reply notice to Ext. P6

P8 - Copy of newspaper dated 28.09.2008

III OPPOSITE PARTY'S WITNESS :

DW1 - Dr. Suseela Prabhakaran

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of consent form for surgery.

D2 - Pamphlet issued by opposite parties.

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 PRESIDENT