BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 139 of 2015.
Date of Institution : 10.8.2015
Date of Decision : 14.12.2016.
Bhagirath Dudy, aged 50 years, son of Shri Mani Ram, resident of village Teja Khera, Tehsil Dabwali, District Sirsa.
……Complainant.
Versus.
- Dr. Parveen Kumar Arora, Dr. Parveen Eye Hospital, Under R.O.B., Hisar road, Sirsa, District Sirsa.
2. United India Insurance Company Ltd., through its Divisional Manager at Sirsa, District Sirsa.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH.S.B.LOHIA………………. ……PRESIDENT.
SHRI RANBIR SINGH PANGHAL ……… MEMBER.
Present: Sh. Rakesh Pareek, Advocate for the complainant.
Sh. J.D. Garg, Advocate for the opposite party no.1.
Sh.JBL Garg, Advocate for opposite party no.2.
ORDER
The case of the complainant in brief is that eye sight of the complainant got weakened, therefore, on 3.1.2015 he visited to opposite party no.1 and got checked up his eyes from him. The op no.1 after his examination, diagnosed that he is suffering from yellow cataract (Peela Motia) and advised for surgical operation and also for inserting of lenses. On the same day, op no.1 conducted operation of eyes of complainant and applied lenses and charged a sum of Rs.14,300/- from him as fee of operation and cost of lenses vide receipt No.466 dated 3.1.2015. He was discharged from hospital on 4.1.2015 on which date, op no.1 further charged a sum of Rs.1,000/- from complainant as cost of consumables. On 5.1.2015, op no.1 charged a sum of Rs.8730/- from him as cost of medicines vide invoice No.9257/63 dated 5.1.2015. The complainant was prescribed medicines by op no.1 and was advised some precautions. After discharge, he consumed the medicines prescribed by op no.1 and also took all the precautions as advised by op no.1. The complainant got himself examined from op no.1 as per his advise on 19.1.2015 and 6.2.2015. However, the vision of complainant did not improve. The complainant visited the op no.1 on 9.2.2015 with the above complaint and then on 10.2.2015 and thereafter on 15.2.2015 for check up. On 15.2.2015, the op no.1 checked up complainant and stated that the lens had a very small hole in it, due to which the fluid has entered inside the eye as a result of which the retina of right eye has been weakened and told the complainant to get himself medically examined from some superior eye care institution. The complainant was highly surprised and astonished to hear this from op no.1 and he suffered a severe shock. Thereafter, on 19.2.2015, he visited Dr. Rajeev Gupta of Sangam Netralya of Mohali and on examination, Dr. Rajiv Gupta told that surgery of his right eye was not properly done and same requires further operation. Thereafter, Dr. Rajeev Gupta conducted the surgery on 20.2.2015 and charged Rs.30,000/-. Again on 17.3.2015, another revision surgery was conducted by Dr. Rajeev Gupta by charging Rs.8,000/- from complainant. As alleged, op no.1 had conducted the surgical operation on the eye of complainant in a gross negligent and careless manner due to which the vision of the complainant has been deteriorated. As alleged, the complainant is undergoing depression etc. Hence, this complaint claiming various reliefs as detailed in the prayer clause of the complaint.
2. On notice, Opposite party no.1 appeared and contested the case by filing written version. OP no.1 took the preliminary objections regarding maintainability of the complaint. As per the version of op no.1, the complainant has filed the complaint with false allegations only in order to extort money from the op no.1 and defame his reputation on the basis of false allegations. It is further replied that patient Mr. Bhagirath was examined in op hospital on 3.1.2015 and found loss of vision in his right eye. His vision was finger counting at 01 feet only and practically he was blind from this eye. Patient was found to be suffering from Mature Senile Cataract right eye. For this disease, cataract removal with phacoemulsification with intraocular lens implantation operation is the standard treatment. After necessary investigations, patient was found suitable for the operation. After explaining the details of the disease and its treatment, a written consent was obtained from the patient and his attendant Mr. Vijender Kumar and above said operation was done on his right eye diligently with utmost due care and caution. The operation was totally successful and patient was discharged on 4.1.2015 after explaining the necessary medication and precautions. The patient visited the hospital after one week. The condition of the eye was satisfactory and after examination necessary medicines were prescribed. On 19.1.2015, patient visited the hospital and his eye sight was checked and was found to be 6/6 part with a minor number of glasses. This vision is considered to be almost normal. Necessary medicines were prescribed. On 6.2.2015 again eye sight was checked and was found to be almost normal. On 9.2.2015 in the evening, the patient came with complaints of decreased vision. His vision had decreased to 6/36. On 10.2.2015, the patient was examined and found to be suffering from Retina detachment. The patient was got examined by Retina Specialist Dr. Gaurav Mangla on 15.2.2015 who advised him retinal detachment correction surgery. But the patient did not agree for the same and after that he never came to op’s hospital and there was no negligence on the part of op no.1. Op no.1 further denied the remaining allegations of the complainant.
3. OP no.2 which is an Insurance company replied that policy No.041200/46/14/35/00001402 effective from 28.5.2014 to 27.5.2015 granting indemnity limits during the policy period for one year of Rs.5,00,000/- and any one accident Rs.5,00,000/- issued by op no.2 is a professional indemnity doctor (other) policy for covering liability as a result of errors and omissions committed by the insured rendering professional services subject to its terms, conditionds and exceptions. Besides there is no proof regarding negligence on the part of op no.1 neither any expert opinion or proof of evidence about the negligent on the part of op no.1 is placed on record. Hence, the answering op no.2 is not liable under the contract of insurance policy and complaint is liable to be dismissed.
4. By way of evidence, complainant has produced his affidavit Ex.C1, discharge slip Ex.C2, prescription slip Ex.C3, receipt Ex.C4, medical certificate Ex.C5, bill Ex.C6, detail of charges Ex.C7, discharge card Ex.C8, bill Ex.C9, prescription slip Ex.C10, eye testing report Ex.C11 and Ex.C12, prescription slips Ex.C13 and Ex.C14, receipt Ex.C15, prescription slip Ex.C16, glasses prescription Ex.C17, retina diagram Ex.C18, discharge summary Ex.C19, postoperative instructions Ex.C20, receipt Ex.C21, discharge summary Ex.C22, postoperative instructions Ex.C23, receipt Ex.C24, prescription slip Ex.C25, glasses prescription Ex.C26, case summary Ex.C27. Whereas, the op no.2 produced affidavit Ex.R1 and copy of insurance policy Ex.R2. OP no.1 produced affidavit Ex.R3, copy of policy Ex.R4, copy of degree of bachelor of medicine and bachelor of surgery Ex.R5, copy of degree of master of surgery Ex.R6, copy of certificate of attendance Ex.R7, copy of certificate Ex.R8, copy of medical registration certificate of op no.1 Ex.R9, copy of medical certificate of complainant Ex.R10, various prescription slips and discharge card, receipt and bill and detail of expenditure Ex.R11 to Ex.R21, case summary of Sangam Netralaya Ex.R22, consent of complainant Ex.R23, copy of card of opening ceremony of hospital of op no.1 Ex.R24, prescription slip Ex.R25, literature on retinal detachment cause Ex.R26, Ex.R27.
5. We have heard learned counsel for the parties and have gone through the case file carefully.
6. It is an admitted case from both the sides that on 3.1.2015 opposite party no.1 conducted cataract operation of the complainant’s right eye and applied lenses for consideration. As per the allegations of the complaint, the vision of the complainant did not improve and on 15.2.2015, op no.1 informed the complainant that the lens had a very small hole in it, due to which the fluid has entered inside the eye, due to which the retina of right eye has been weakened and told the complainant to got himself medically examined from some superior eye care institution and hearing this, the complainant suffered with severe shock. On 19.2.2015, complainant visited Dr. Rajiv Gupta of Sangam Netryalya of Mohali and got himself medically checked up where Dr. Rajiv Gupta disclosed that surgery of his right eye was not properly done and same requires further operation. As alleged by the complainant, all this happened due to negligence and careless in conducting the cataract operation by op no.1. On the other hand, op no.1’s case is that operation was successful and patient enjoyed good vision up to 9th February, 2015 when patient visited the hospital and was found to be having decreased vision due to Rhegmatogenuous Retinal Detachment. The patient was advised surgery for Retinal Detachment but he did not agree for the same. Now the only question to be determined is whether there is any negligence on the part of opposite party no.1 while conducting right eye cataract operation of the complainant on 3.1.2015 or not?. To decide this question, we have gone through the record available on the file. From Ex.C10 and report Ex.C11, Ex.C12, prescription slip Ex.C13, it is clear that there was no loss of eye sight as alleged by complainant, rather it was on the improving side. From perusal of case summary Ex.C27 issued by Dr. Rajeev Gupta of Sangam Netralya, Mohali after right eye retinal detachment surgery conducted on 20.2.2015, it is clear that at the time of examination of the patient on 19.2.2015, patient/ complainant had complained of decreasing in right eye vision since 15 days i.e. since a period 15 days ago from 19.2.2015. From this case summary, it is also clear that complainant undergone right eye cataract surgery on 3.1.2015 at Sirsa with good post vision gain. From this all, it is clear that operation conducted by opposite party no.1 was successful. As per the literature produced by learned counsel for op no.1 during the course of arguments, retinal detachment is a disorder of the eye in which the retina separates from the layer underneath. Symptoms include an increase in the number of floaters, flashes of light, and worsening of the outer part of the visual field. This may be described as a curtain over part of the field of vision. In about 7% of cases both eyes are affected. Without treatment permanent loss of vision may occur. The mechanism most commonly involves a break in the retina that then allows the fluid in the eye to get behind the retina. A break in the retina can occur from a posterior vitreous detachment, injury to the eye, or inflammation of the eye. Other risk factors include being short sighted and previous cataract surgery. Retinal detachments also rarely occur due to a choroidal tumour. Diagnosis is by either looking at the back of the eye with an ophthalmoscope or by ultrasound. In those with a retinal tear, efforts to prevent it becoming a detachment include cryotherapy using a cold probe or photocoagulation using a laser. Treatment of retinal detachment should be carried out in a timely manner. This may include scleral buckling where silicone is sutured to the outside of the eye, pneumatic retinopexy where gas is injected into the eye, or vitrectomy where the vitreous is partly removed and replaced with either gas or oil. Retinal detachments affect between 0.6 and 1.8 people per 10,000 per year. About 0.3% of people are affected at some point in their life. It is most common in people who are in their 60s or 70s. Males are more often affected than females. The long term outcomes depend on the duration of the detachment and whether the macula was detached. If treated before the macula detaches outcomes are generally good. Thus there are many causes of retinal detachment including posterior vitreous detachment, injury to the eye, myopia (short sightedness) and previous cataract surgery. Learned counsel for complainant cited various case laws cited as 2011 (1) Apex Court Judgments 023 (SC) titled as Minor Marghesh K. Parikh Vs. Dr. Mayur H. Mehta, 2014 (3) Civil Court Cases 644 (Kerala High Court) titled as Mathew Varghese Vs. Kerala State Electricity Board, 2013 (2) Civil Court Cases 244 (SC) A. Srimannaryana Vs. Dasari Santakumari & Anr. 2000 (3) Civil Court Cases 441 (Madras High Court) Mrs. Arpana Dutta Vs. Apollo Hospitals Enterprises Ltd. & Ors., CA No.2897 of 2000 decided on 24.4.2000 (SC) titled State of Haryana Vs. Smt. Santra and 2011 (1) Civil Court Cases 272 (SC) V.N. Shrikhande Vs. Anita Sena. The crux of all the above cited case law is that in case of medical negligence, patient is entitled to recover damages from the doctor but negligence on the part of treating doctor must be proved. On the other hand, learned counsel for op no.1 cited case law titled as Dr. Sanjay Gadekar Vs. Sangamitra, 2016 (3) CLT 14 (NC), 2015 (3) CPJ 337 (NC) Silverline Eye Hospital & Anr. Vs. Dr. Dulal Chandra Bag, 2014 (2) CPJ 762 (NC) Sucheta Sanyal Vs. Dr. Meghnad Bhowmik, 2015 (2) CPR 161 (NC) Savitri Devi vs. Dr. Pradeep Kumar, 2015 (2) CPR 392 (NC) Damyanti Bhatnagar Vs. Dr. Indu and 2016 (3) Law Herald (SC) 2296 Najrul Seikh Vs. Dr. Sumit Banerjee, 2016 (3) CPR 20 (NC) Oxford Hospital etc. Vs. K.K. Mittal and others and 2016 (3) CPR 377 (NC) Fazal-E-Ilahy Vs. Sri Jayadeva Institute. The crux of all these case law cited by learned counsel for op no.1 is that no cure is not a negligence and doctor should not be punished for if anything goes wrong.
7. The op doctor is running his eye hospital in Sirsa since 1989 as per document Ex.24. Further, from the certificates and degrees exhibited as R5 to R9, it is clearly established that op doctor is a master of surgery and competent to conduct such operations as in this case. Moreover, from the perusal of series of documents placed on record by the complainant as Ex.C1 to Ex.C27, any negligence on the part of op doctor while conducting the operation of the complainant is not proved rather from the case summary Ex.C27 issued by Dr. Rajeev Gupta, who conducted second operation of the complainant on 20.2.2015. Besides it, there is no other expert opinion or any document to prove any negligence or carelessness on the part of op no.1 while conducting operation of the complainant. As such, it is clear that after the cataract surgery on 3.1.2015, the vision was good and operation was successful.
8. Thus, as a sequel to our above discussion, we are of the considered opinion that complainant has failed to prove any professional negligence or carelessness on the part of the opposite party no.1 while conducting his right eye operation on 3.1.2015. Resultantly, the present complaint is hereby dismissed with no order as to costs. A copy of this order be supplied to the parties as per rules. File be consigned to record room after due compliance.
Announced in open Forum. President,
Dated: 14.12.2016. Member. District Consumer Disputes
Redressal Forum, Sirsa.
