West Bengal

Siliguri

CC/2013/143

KANAI LAL BHATTACHARJEE, - Complainant(s)

Versus

DR (MRS.) M. M. CHOWDHURY - Opp.Party(s)

19 Jun 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

 

CONSUMER CASE NO. : 143/S/2013.                DATED : 19.06.2015.   

             

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                      MEMBER                : SMT. PRATITI  BHATTACHARJEE.

 

COMPLAINANT                 : KANAI LAL BHATTACHARJEE,  

  (K. L. Bhattacharjee),

  30/12, Deshapriya Sarani,

  West Bhaktinagar (NJP),

  P.O. - Bhaktinagar, PIN – 734 007,

  Dist. – Darjeeling,

  P. – 94763 92826.

                                                              

O.P.                                       : DR (MRS.) M. M. CHOUDHARY,   

  Siliguri Greater Eye Hospital,

  2^nd Mile, Sevoke Road (Behind Vishal

  Cinema),

  Siliguri – 734 001, (W.B.).

  Phone No.(0353) 2543457, 2543301.

                                               

                                                                                                                                                                  

FOR THE COMPLAINANT         : Self.

 

 

J U D G E M E N T

 

The complainant’s case is succinctly summarized as follows :-

The complainant was suffering from visual deficiency on right eye after a cataract surgery by Dr. M. M. Choudhary, Ophthalmologist, Siliguri Greater Lions Eye Hospital.  Before surgery he underwent several pathological tests.  On 27.09.2012 he was admitted to hospital for cataract phaco surgery performed by Dr. M. M. Choudhary, but vision was not improved.  He again went to the hospital on the follow up date for check up.  He came to know that Dr. M. M. Choudhary was on leave

 

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for a month.  He was examined by Dr. Das who did not prescribe any medicine.  In fact Dr. Das did not attend him.  After some days he met with Dr. Choudhary for prescribe medicine and advised to wait.  Later on he was again treated by Vashan Eye Care Hospital, Ashrampara, Siliguri, where he was told that as operated eye was damaged, and vision would not be restored.  The complainant then went to Calcutta where he consulted with Dr. S. Das, MBBS, M.S., FRCS etc. of Salt Lake.  Thereafter, he was treated by some numbers of doctors at Salt Lake and was recommended for corniographic treatment.  In spite of his best efforts, he did not get return of his vision.  As such he alleges negligence on the part of Dr. M. M. Choudhary.  His complaint was lodged on 28.10.2013. 

The OP has appeared in this case and contested the case by filing written version denying inter-alia all the material allegations as raised by the complainant.

The written version of the OP is that the complainant petitioner attended OPD of Greater Lions Eye Hospital on 15.09.2012 with complaint of decreased vision of the right eye.  He consulted with this OP on the same date.  Detailed Ophthalmic examination was done and cataract was detected in his right eye.  He was advised to undergo cataract surgery in the form of Emulsification with placement of PCIOL.  After compliance of all tests and procedure and complying all necessary requirements, Physician Dr. N. N. Tarafder gave clearance for phaco surgery.  Date of operation was fixed on 27.09.2012.  Patient was admitted on Siliguri Greater Lions Eye Hospital on 27.09.2012.  Concerned form was signed by the complainant.

It is further contended that cataract surgery was done by phaco emulcification machine using all standard procedures.  No immediate post operative complications were observed.  Patient was discharged on

 

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hospital on the same day.  On next day checking the patient’s cornea showed corneal oedema and haziness.  He was prescribed medicine.  He was instructed to go in the Lion’s Hospital with other competent senior doctor as he was on schedule leave for one month from 29.09.2012.  The patient came and was examined by senior doctors.  It was found there was corneal oedema.  No surgical complication was noted.  Patient’s vision was 1/60.  Next day on 10.10.2012 the patient was examined by senior Dr. Subrato Saha on 08.11.2012 the patient was examined by the OP/doctor.  He had persistent corneal oedema, as such the doctor prescribed medicine.  The patient came on 24.11.2013 and was given medicines.  It is specific case of the OP that she would be on leave from 29.09.2012, which was displayed on the hospital notice board many days before.  So, there is no negligence or deficiency of service on the part of the OP.  The complication suffered by the patient is a non complication of the cataract surgery. 

So, from the OPs version it appears that operation of cataract was done on 27.09.2012 and patient was released.  The patient reported on 28.09.2012.  There was no procedural complication, but there was corneal oedema and haziness.  So, from the complaint and written version, it appears that the complainant attributes negligence on the doctor for causing oedema in his operated eye.  As such causing defect in vision after operation.  The OP denies the dispute and submits that he has operated the eye after completion of all pathological tests and the patient was in good condition on 27.09.2012.  On 28.09.2012 the oedema was found in the eye of the complainant.  On 29.09.2012 the doctor left the hospital and was on leave for one month i.e., the doctor denies the negligence. 

Complainant has filed the following documents :-

1. Consulting physician certificate on 25.09.2012.

 

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2.       Blood sugar report of North Bengal Eye Centre, Siliguri on 20.09.2012.

3.       A scan biometry report of North Bengal Eye Centre, Siliguri on 20.09.12.

4.       Fit certificate of Dr. S.K. Sharma of N.B. Eye Centre, Siliguri on 20.09.12.

5.       Blood sugar report of SGLEH on 25.09.2012.

6.       ECG report of SGLEH on 25.09.2012.

7.       Discharge certificate of SGLEH on 28.09.2012.

8.       Lens Implant identification on 28.09.2012.

9.       Report of 2^nd reviews of SGLEH on 08.11.2012.

10.     Prescription of Dr. A.C. Bhowal of N.B. Eye Centre on 06.03.2013.

11.     B Scan report of North Bengal Eye Centre on 28.06.2013.

12.     Prescription of Dr. K. Biswas, Retinal Surgeon of Slg. Lions Netralaya on 02.07.2013.

13.     Prescription of Dr. H. Dutta Gupta, B.R. Singh Rly Hospital, Sealdah on 22.08.2013.

14.     Prescription of Dr. S. Das of Sushruta Eye Foundation and Research Centre on 23.08.2013.

15.     Prescription of Dr. S.K. Basak, Disha Eye Hospital and Research Centre, Barrackpur, Kolkata, on 24.08.2013. 

16.     Some other prescriptions. 

 

OP has filed the following documents :-

1.       Photocopy of certificate of occupational proof given by Siliguri Greater Lions Eye Hospital. 

2.       Photocopy of Treatment of postoperative corneal Edema, Hypertonic solution.

3.       Photocopy of Chapter, complication of cataract surgery.

 

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4.       Photocopy of postoperative corneal edema, epidemilogy.

5.       Photocopy of post operative corneal edema, background, contributor information and disclosures.

6.       Photocopy of Seudophakic Bullous Keratopathy, Medical care.  

8.       Photocopy of Seudophakic Bullous Keratopathy, Epidemiology.

 

Point for decision

 

1.       Whether there was negligence caused by the OP in treating the complainant ?

2.       If so, is the complainant is entitled to get any relief ?

3.       If so, what is the amount ?

 

Decision with reasons

 

These three issues are being taken together for discussion. 

It is admitted position that the complainant was treated by the OP.

It is also admitted position that on 27.09.2012, the OP performed operation and patient was released.  It is also admitted position that on 28.09.2012 the patient came to examine by the OP doctor and OP found oedema and loose of vision.  OP advised the complainant to attend Outdoor of another senior doctor and OP went on leave from 29.09.2012 for one month. 

The case thus stands that patient came for operation with less vision, but after two days of operation, the patient lost his vision totally and oedema appears in the Retina on 28.09.2012 and the OP discharged his duty only with making suggestion to the patient to attend another senior doctor and was on leave.  The complainant himself advanced his argument again and again raising grievances that his vision has been taken away by the OP by total negligence acts.  The OP left hospital from 29.09.2012.  The complainant himself submitted the principles of res if sha loequitor and submits that when he has suffered by losing his vision,

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this result shows that doctor is severe negligence in performing his duty.  The complainant himself submits that he is 72 years old.  The unattended duty of doctor has caused him handicapped because he could not see anything by his eye just after operation.  Statement of doctor shows that on 28.09.2012, on post inspection period doctor herself noticed oedema and shortness of vision in the operated eye of the complainant.  The complainant also submitted that seeing his deplorable condition of eye, doctor did not come to hospital on 29.09.2012 leaving this patient in the mercy of other doctor in the outdoor.  This conduct of the doctor shows that he herself is respo0nsible for his negligence towards this complainant.  Refuting his argument the ld advocate of the OP submitted that she took all steps for treatment of patient in pre and post operative step and doctor went on leave from 29.09.2012 instructing the complainant to be examined by senior doctor on next date after 28.09.2012, but the patient did not come on 29.09.2012.  From 29.09.2012 the doctor was absent i.e., was on leave.  It is further stated that complainant should join the hospital as a necessary party because the doctor did not take any fee from the complainant.  The complainant has paid the money to the Lions Club.  So, the claim ought to have been filed against the Lions Club, hospital authority.  He has also stated no evidence of expert has been taken in this case. 

He has relied on the principle of law laid down in i) 2005, CRLJ 3710,  ii) 2010 (III) CPJ 1 SC, and iii) some other cases. 

The complainant has come before this Forum with injury of his right eye.  After operation his vision has been lost.  This act itself evidence that there is negligence in the operation of the eye of the complainant.  Just after the next day the doctor left the hospital.  This shows that the doctor should not have done any complicated operation if the date of departure was fixed on 29.09.2012.  It is his knowledge that

 

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the case is complicated.  It is specifically argued that in such complicated cases, where the surgery involved in highly specialized and perhaps even esoteric, so in that case she should not leave the patient without waiting for few days.  When leave was fixed for one month before, then doctor should not make such operation in the body of such kind of operation of 72 years old.  This conduct of course shows hasty action releasing such immense difficulties and blindness in the eye of this complainant who is now moving from pillar to post praying redressal for his loss.  There had been some corneal injury and such corneal injury might have been caused by the doctor at the time of operation.  It has been also argued by complainant that on 28.09.2012 in the morning the doctor found his vision less 12 hours and the OP immediately suggested six kinds of medicines for treatment.  The complainant used those medicines as per doctor’s prescription, but he was not relieved of paid and was unable to get his vision.  Second review was done on 03.10.2012.  No fresh medicines were recommended on 03.10.2012 for improvement of visual acuity and alleviate of inflammation.  On 08.11.2012 this OP again examined him and prescribed medicines to be continued except recommendation of medicine on the date of operation or on 28.09.2012 and on November, 2012 first check up after leave by OP, but the doctor did not disclose anything regarding inflammations of eye on which operation was done. 

The OP also filed written notes on argument. 

Ld advocate of the OP argued that after operation the patient was examined by OP and corneal oedema and haziness was found and OP suggested medicines to cure the oedema.  Dr. Subrato Saha was also examined the patient in the month of October i.e., on 10.10.2012.  After returning from leave the doctor again treated the patient and prescribed medicines as per prescription :- i) Hyper tonic eye drops, ii) Anti inflammatory eye drops, and iii) Lubricating Eye Drops, and the complainant was advised to take the opinion of a cornea specialist. 

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So, from the above argument when this is admitted position that the doctor advised the patient who was operated by her, to be examined by a cornea specialist.  The doctor admittedly an eye specialist, and undertaken the charge of operation of eye to remove cataract by phaco method. 

It is argued that after 24.11.2012 to middle of 2013, the complainant did not consult the OP, nor any Ophthalmologist.   Accordingly, the argument of the OP shows negligence on the part of the complainant by not taking himself adequate steps for his treatment. 

It is also argued that the defect of parties, because the hospital should be brought in the record as a parte.

Thirdly, opinion of expert was essential to determine the negligence of the OP. 

To that effect ld advocate of the OP has filed some decision of the Hon’ble Supreme Court.

He referred AIR 2010 SC 806, 2005 Cr L J 3710 SC, 2010 (III) CPJ 1 (SC) and précised his argument that complainant is unable to prove negligence on the part of the doctor at time of operation.  As such he argued that case should be dismissed.

The OP in her evidence-in-chief in para 11 stated that on the first operative day, the cornea of the patient was showing some oedema which is a usual post operative finding insignificant number of patients (particularly in the case of patient about 65 years of age).  The patient was given appropriate medicines as per standard medical protocol.  The patient was asked to come for regular follow up.  Many patients show improvement with subsidence of corneal oedema, many patients don’t improve and may go into bullous keratopathy.  She further stated it was advisable to wait for at least three months to say effects of medical treatment before thinking about keratoplasting.  “Pseudoaphakic bullous keratopathy is a known complication of cataract surgery”.  But she never

 

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stated that she informed the patient regarding the defect which can arise by the cataract operation.  The above effect of operation has not told to the patient or any person interested in his operation.  There is no mention of standard protocol anywhere in their evidence or in the written notes on argument.  Nowhere in the written notes on argument, the OP stated that she directly or indirectly told the patient regarding the complication of patient.  In her evidence-in-chief in para 11 last line “older patients who have less endothelial reserve are more prone to develop this problem”.  But such kind of effect has not been stated or informed to the complainant who has undergone operation by this OP. 

Furthermore, in para 12 she stated that “the training was recommended & sponsored by Siliguri Greater Lions Eye Hospital.  The responsibility of follow-up & further treatment of patients operated/seen by me, during my absence was on Siliguri Greater Lions Eye Hospital & Health provider team of Siliguri Greater Lions Eye Hospital”.  So, the OP has admitted the operation, defect of operation which could arise, and responsibility of the hospital who arranges the team for operation of complainant and others.  Doctor OP thus categorically admitted the all facts of the case which have been stated by the complainant.  The defect of operation creating oedema having raised by the complainant and this can be admitted by the OP doctor.  It has also been stated by the OP that “complications suffers by the complainant is a known complication of cataract surgery”.  So, when the doctor admits the complication raised by the complainant to prove that fact, examination of expert is not necessary.  Accordingly, the defences of doctor that “expert has not been examined” in this case cannot stands in the way of proceeding before this Forum. 

The doctor stated in evidence-in-chief that she followed standard protocol, but she did not show what standard protocol by which she

 

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prescribed medicine and prescribed operation and to show that those medicines were not applicable to post operative period regarding nature and effect of such type of case. 

There is no evidence or evidence of authority to show that doctor followed the standard protocol or that those medicines were sufficient to alleviate the pain and inflammation of the eye of the complainant.  The doctor raised the responsibility of negligence on the complainant by taking plea that the complainant did not go to ophthalmologist specialist for more than 3½ months i.e., from 24.11.2012 to 05.03.2013.  this defence is not sustainable as that was not explained to the complainant on earlier occasion and on or before taking to recourse the surgery method for treating the complainant’s eye. 

The discharge summary shows that patient was admitted on 27.09.2012 and surgery was done on 27.09.2012 and patient was discharged on 28.09.2012.  Type of surgery is phaco.  There is no mention of operation notice, only post operative instruction shows using of some liquid and capsules.  First review dated was 28.09.2012, 2^nd review date was 03.10.2012 and 3^rd review date was 10.10.2012 and last 02.11.2012. 

There is no instruction in the discharge summary giving direction on the patient to be treated by any other doctor or ophthalmologist as per statement of the OP in para 15.  So, in no way her negligency cannot be attributed on the complainant that she did not take proper care.  Moreover, such statement of doctor against the complainant goes against public policy because none intends to be harm by a doctor.  A man comes to doctor to cure his disease, not to implicate himself by other disease and doctor’s duty is to be vigilant to take care and attention on the patient under his treatment and operation. 

In this case in hand, as per the material of doctor, it has been

 

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shows that doctor went for leave of one month leaving such kind of patient upon whom operation has been done on 27.09.2012 leaving the patient in the care of other persons.  The doctor herself stated first three months after operation is a crucial of a patient.  So, it was not proper for a doctor to make operation on the 72 years old patient to be left by the doctor after operation.  Such conduct shows the persons of gross negligence on the part of a doctor in discharging his/her duties with due care and attention.  A doctor has some duties moral or legal application to the patient to take all steps to cure his disease.  The patient should be well aware by the doctor before operation in black and white.  But the doctor has not done or has not been discharged her duties which is unexpected to be performed by a professional man like doctor.  If sufficient care would have taken before and after the operation, such kind of oedema could have been avoided.

The patient was again treated by this doctor on 08.11.2012.  The treatment sheet has been filed which does not reflect that the doctor suggested the patient anything. 

Thereafter, the patient had been treated by many doctors at different places, but till now he is not able to say by his right eye. 

The witness had projected his eye before us showing that after operation he was not able to see anything and stated that he had been treated by many other places in West Bengal to remove his blindness.  He not only lost his eye, but also has suffered by money and peace in mind. 

Accordingly, act of the doctor has deprived him his light of vision by making injury in the eye of the complainant at the time of operation.  Due to act of doctor, the complainant has injured his eye.  So, after deliberation over the material on record, we are of the view that complainant’s case has proved and the OP is liable to pay the compensation for her deficiency in service and negligence. 

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Now let us consider the quantum of compensation. 

The complainant did not file any voucher of cost.  He has prayed for Rs.8,000/- and compensation of Rs.50,000/- and cost of litigation. 

It is no doubt of deprivation of sight of a man cannot be compensated by money or land or by anything because, the man will not be able to see and enjoy the beauty of the world, and other natural animals including the man and other beautiful creature of the world.  Nature has created eye only for enjoying the beauty of the world by man and by others.  To loss any limb, any parts or any organ of a body is a greater harm to a body of a man, wherein the God’s gift is deprived to the body and soul.  So, the loss of sight cannot be compensated by money or by anything. 

The complainant has prayed a poultry sum of Rs.50,000/- for compensation and Rs.8,000/- for cost of medicine etc. which had been paid by the complainant, and cost of litigation of Rs.13,000/- can be given to the complainant for coming and going to this Forum on 26 days @ Rs.500/- per day.

So, the sum stands at Rs.71,000/- in total, which required to be paid by the OP to the complainant.

The complainant is further entitled to get interest @ 9% per annum from the date of filing of this case till full payment.    

In the result, the case succeeds.

Hence, it is  

                    O R D E R E D

that the Consumer Case No.143/S/2013 be, and the same is hereby allowed on contest.

The complainant is entitled to get Rs.8,000/- for cost of his medicine etc. from the OP.

The complainant is further entitled to get Rs.50,000/- towards compensation from the OP. 

 

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The complainant is further entitled to get Rs.13,000/- for litigation cost from the OP. 

The complainant is also entitled to get interest @ 9% per annum from the date of filing of this case till full payment.

The OP Doctor is directed to pay Rs.8,000/- by issuing an account payee cheque in the name of the complainant towards cost of medicine etc., within 45 days of this order.

The OP Doctor is further directed to pay Rs.50,000/- by issuing an account payee cheque in the name of the complainant towards compensation, within 45 days of this order.

The OP Doctor is  also directed to pay Rs.13,000/- by issuing an account payee cheque in the name of the complainant towards litigation cost, within 45 days of this order.

The OP Doctor is further directed to pay interest @ 9% per annum from the date of filing of this case till full payment within 45 days of this order.

Failing which the amount will carry interest @ 9 % per annum from the date of this order till realization.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

-Member-                                                       -President-