BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 108 of 2020.
Date of Institution : 26.02.2020.
Date of Decision : 10.12.2024.
Gurdev Singh son of Sh. Kartar Singh, aged about 50 years resident of Housing Board Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Dr. Praveen Eye Hospital, Under R.O.B, Hisar Road, Sirsa through its authorized Director.
2. Dr. Parveen Kumar Arora, M.S. Eye Surgeon under R.O.B, Hisar Road, Sirsa.
3. Oriental Insurance Company Limited, 4E/14, Azad Bhawan, Jhandewalan Extension, New Delhi –55.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act, 1986.
Before: SH. PADAM SINGH THAKUR ………………PRESIDENT
SMT. SUKHDEEP KAUR……………………….MEMBER.
SH. OM PARKASH TUTEJA………………….MEMBER
Present: Sh. Sumit Soni, Advocate for complainant.
Sh. J.D. Garg, Advocate for opposite parties no.1 and 2.
Sh. A.S. Kalra, Advocate for opposite party no.3.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amendment u/s 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to OPs).
2. In brief, the case of complainant is that complainant was suffering from the problem of weak eye sight, hence he approached to op no.2 for check up as op no.2 has been running Eye Hospital. The op no.2 told him that his right eye is having Cataract and assured that after operation said disease will be cured and prescription slip in this regard bearing no. 2388 dated 07.08.2017 was issued by op no.1. That within one month after operation, complainant visited hospital of op no.1 and op no.2 regularly checked up him and stated that operation is successful and asked him to use medicine. It is further averred that even thereafter complainant has been approached the op no.2 for check up of his right eye but op no.2 and his employees have been putting off the complainant with one pretext or the other and referred him to Dr. Maansi Bansal M.D. in Mahaveer Dal Charitable Hospital Bathinda. That finally in the first week of August, 2018, the op no.2 clearly stated that there is no negligence in operation and also refused to operate again stating that same is his own negligence as he has not done proper care and caution. It is further averred that ultimately complainant got himself checked in LJ Eye Institute Ambala on 04.08.2018 where the doctor found in his reports that he has Pthisis bulbi i.e. his right eye is dead due to operation conducted by op no.2. The op no.2 has not done only negligence in operation of complainant but ops have also caused unnecessary harassment and humiliation to the complainant and they are guilty for providing deficient services and as such complainant is entitled to compensation of Rs.15,00,000/- from ops. It is further averred that earlier complaint filed by him was withdrawn due to some legal lacuna. Hence, this complaint.
3. On notice, ops appeared. Ops no.1 and 2 filed written version submitting therein that op no.1 hospital is a well equipped hospital, duly registered with the State Govt. of Haryana. Op no.1 is committed to provide its patients with quality health care services at competitive prices by a team of qualified and experienced consultants and super specialists. Op no.2 is a qualified and experienced Eye Surgeon and is duly registered with the State Medical Council and he has a clean and spotless professional career/ track record and has been keeping himself updated in their professional skills and knowledge through various conferences and programs relating to his field. They have also taken preliminary objections that complaint is barred by limitation period as the alleged cause of arose on 01.10.2017 when the patient last visited the answering ops whereas complaint has been filed after lapse of two years. The patient was operated on 08.11.2017 and complaint is liable to be dismissed being barred by limitation. That complainant without any basis or justification has claimed exorbitant amount of Rs.15,00,000/- on account of harassment and humiliation but there is nothing on record to prove that there is any medical negligence on the part of ops no.1 and 2 in treating the complainant. In the prayer clause, there is no allegation of medical negligence or deficiency in service by ops no.1 and 2. That present complaint is wholly misconceived, groundless, frivolous and vexatious which is unsustainable in the eyes of law as same has been cooked up and has been filed without justified reason/ cause against ops no.1 and 2 just to harass, defame and extort illegal sum from them, hence complaint is liable to be dismissed. That no specific, scientific and justified allegations in regard to negligence of deficiency in providing services have been made by the complainant against ops no.1 and 2 and complainant has totally failed to explain as to how the op no.1 and op no.2 were negligent, hence complaint is based on non specific, unscientific and laymen conjectures. It is further submitted that law does not require professionals to give guarantee or warranty with respect to the end results of the services rendered by them. What law requires is that the services rendered must not be sub standard and must be without any shortcomings. The end results are immaterial and in the instant case, the op no.2 treated the patient diligently with due care and skill and there was no negligence or deficiency in services provided by ops no.1 and 2 to the patient. That present complaint is not supported by any expert medical witness on behalf of complainant. It is also submitted that no cause of action arose against ops no.1 and 2 in this case and that complainant has not filed the complete treatment record of the patient pertaining to the period after getting the treatment from ops no.1 and 2. Non filing of complete treatment record amounts to concealment of material facts and complaint deserves to be dismissed on this score alone. It is further submitted that op no.2 is insured with Oriental Insurance Company Limited through its professional indemnity policy No. 272200/48/2019/3684 effective from 28.05.2018 to 27.05.2019.
4. On merits, it is submitted that patient Mr. Gurdev Singh visited Dr. Praveen Eye Hospital on 07.08.2017 with complaint of diminished vision both eyes for last many months. On examination he was having vision of only hand movement from right eye (meaning thereby he had hardly any vision in his right eye). He was found to be suffering from hyper mature senile cataract right eye. The patient was diabetic for three years but at this moment, his blood sugar was found normal so after necessary investigations and medications he was operated on his right eye after his consent. He was charged Rs.12,000/- only for operation, investigations, cost of lens, stay etc. It is further submitted that patient was operated on 07.08.2017, during surgery it was found that the posterior capsule was very thin and ruptured and vitreous was lying outside the capsule. Anterior vitrectomy was done and anterior chamber OIL was implanted which is the usual treatment in such cases as per accepted standards of practice. The patient was discharged on same day after explaining necessary care and advised medicines. The patient visited the answering ops on 09.08.2017 and was visibly happy and as token of regard he also brought for op no.2, coffee paste mix as he was running a canteen somewhere. The patient was advised medicines for a week. Again, he visited on 19.08.2017 and he was advised medicines for 15 days. It is further submitted that on 29.08.2017 he visited the answering ops with complaint of decreased vision and his I.O.P (intraocular pressure) was found to be raised. He was prescribed necessary medicines and advised to follow up after three days. He visited again on 31.08.2017 and as his I.O.P was still raised, he was further prescribed necessary medicines and posted for pars plane vitrectomy by VR specialist Dr. Gaurav Mangla. The procedure was done on 03.09.2017 as per standard of practice which was successful. He was advised to visit the hospital on next day i.e. 04.09.2017 but he visited on 08.09.2017 and additional medicines were given and he was called for next day if no relief. It is further submitted that on 09.09.2017 he was found to be having inflammation of the eye and intravitreal injection of Amikacin and Vancomycin were given which is the standard treatment in such cases. Patient was explained about his condition and advised to come for follow up after two days i.e. on 11.09.2017 but the patient did not visit the answering ops for next 20 days and thus wasted crucial time when his inflamed eye could be treated. Then he visited the hospital after a long gap of 20 days i.e. on 01.10.2017. On enquiry, he stated that he could not come due to staff shortage in his canteen. He was found to be having corneal ulcer. Necessary medicines were given and after that he never visited the answering ops and lost to follow up. It is further submitted that as the patient expressed his inability to pay the cost of treatment due to poverty, the answering ops acted in the best interest of the patient with empathy and all the post operative treatment including operation by Dr. Gaurav Mangla were performed free of cost and from the facts and circumstances of the case, it is clear that ops no.1 and 2 were not negligent and treated the patient diligently with reasonable care and skill. The Hon’ble Apex Court in many judgments have pointed out that if the patient lost follow up, he/ she will be responsible for the after effects and thus cannot be attributed as medical negligence on the part of treating doctors. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. Op no.3 also filed written statement taking certain preliminary objections regarding territorial jurisdiction, cause of action, maintainability etc. It is submitted that complaint is not maintainable as contention of negligence is not supported by any expert medical evidence and present complaint is without support of any scientific evidence or medical literature. The contention on which basis claim has been raised is against the doctors, who are expert in their fields but not GOD and present complaint seems to be filed in order to cover up own lapses, negligence. It is further submitted that there is willful and deliberate breach of term and conditions of the policy on the part of op no.2 insured as he failed to supply the notice/ intimation regarding receipt of summons and thus due to violation of term and conditions of the policy, insurance company being insurer should not be held liable to indemnify him, if any liability is imposed upon insured/ op no.2 as op no.2 was under contractual obligation as per term and conditions of the policy to intimate about any negligence on their part, proceedings launched against him or her/ them so as to enable insurance company to get the matter investigated at the earliest and proceed accordingly. The right and interest of company has been prejudiced adversely due to delayed intimation. On merits, it is submitted that contents of para no.9 of the complaint is admitted to the extent of insurance of doctor/ op no.2, but the same was subject to compliance of term and conditions of policy. The liability to indemnify the insured is limited to the extent of Rs. five lacs for any one accident and Rs. five lacs for aggregate during the policy period 28.05.2018 to 27.05.2019 that also where doctor acted in a negligent manner and after the report/ finding given by Board of Experts and thereafter by the competent court of law, the liability is fastened upon the insured and there is no violation of term and conditions of the policy by the doctor/ insured, only in that eventuality, to the limited extent being insurer, insurance company will indemnify the doctor/ insured. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
6. The complainant in evidence has tendered his affidavit Ex. CW1/A and documents Ex.C1 to Ex.C6.
7. On the other hand, ops no.1 and 2 have tendered affidavit of op no.2 Dr. Praveen Kumar Arora as Ex. RW1/A and documents i.e. his degrees and medical record etc. Ex.R1 to Ex.R24. OP no.3 has tendered affidavit of Sh. Sanjay Aggarwal Incharge Legal as Ex. RW3/A and policy schedule Ex.R3/1.
8. We have heard learned counsel for the parties and have gone through the case file.
9. Learned counsel for complainant while reiterating the contents of complaint has contended that due to medical negligence of op no.2 Dr. Parveen Kumar of the hospital of op no.1 while conducting his surgery of cataract of right eye, the total vision of his right eye has lost as his right eye developed Pthisis Bulbi after the said operation meaning thereby that his right eye has become dead. He has further contended that complainant has become permanently disabled and his life has become miserable and he has to live at the mercy of others and prayed for adequate compensation and acceptance of the complaint.
10. On the other hand, learned counsel for ops no.1 and 2 while reiterating the contents of written version has contended that just because a doctor opts for a particular line of treatment but does not achieve the desired result, they cannot be held liable for negligence. A line of treatment undertaken should not be of a discarded or obsolete category in any circumstance. He has also contended that besides the fact that there is no expert opinion of any expert doctors in the field and medical board about any medical negligence of op no.2, admittedly complainant was also a patient of Diabetes but on 07.08.2017 when he visited ops no.1 and 2 his blood sugar was found normal, so after necessary investigations and medications he was operated for his right eye after his consent. Learned counsel for ops no.1 and 2 has further contended that there are chances of infection and more complications after surgery in a patient of Diabetes Mellitus and has relied upon an abstract of author regarding Postoperative endophthalmitis in association with diabetes mellitus as Ex.R24 and while denying all the allegations of complainant he has also submitted that complainant himself is negligent as on 09.09.2017 he was advised to come for follow up after two days i.e. on 11.09.2017 but he did not visit the ops no.1 and 2 for next 20 days and thus wasted crucial time when his inflamed eye could be treated and as such prayer for dismissal of complaint made. Learned counsel for ops has also relied upon decision of Hon’ble Supreme Court of India in case titled as M.A. Biviji Versus Sunita & Ors. CA No. 3975 of 2018 decided on 19.10.2023.
11. Learned counsel for op no.3 has reiterated the contents of written version of op no.3 and prayed for dismissal of complaint qua op no.3.
12. We have considered the rival contentions of the parties. Admittedly on 07.08.2017 complainant was operated by op no.2 doctor in his hospital for cataract of right eye of complainant. Although on the prescription slip dated 07.08.2017, the history of D.M 3 years is mentioned, but there is nothing on file to prove the fact that before surgery on 07.08.2017 itself, his test regarding diabetes was got conducted by ops no.1 and 2. Neither any test was prescribed by ops no.1 and 2 before surgery nor same was got conducted as there is nothing on file to prove the fact that what was blood sugar of complainant on 07.08.2017, so it cannot be said that his blood sugar was normal on the day of his first visit to the hospital of ops no.1 and 2 and at the time of operation which was also conducted on the same day of visit of complainant in the hospital of ops no.1 and 2. The blood sugar of complaint was only got tested by ops no.1 and 2 on 29.08.2017 i.e. after twenty days of the operation of complainant as is evident from medical notes Ex.C2 produced by complainant and Ex.R9 produced by ops no.1 and 2. Further the medical negligence of op no.2 doctor is also apparently clear because after cataract surgery of complainant on 07.08.2017, admittedly the procedure of pars plane vitrectomy by specialist Dr. Gaurav Mangla of S.D. Mahabir Dal Hospital of Bathinda was done on 03.09.2017 and complainant also visited him on 25.09.2017 as is evident from prescription slip Ex.C4 in which it is mentioned that end of retina. Since severe complications after the surgery of cataract of right eye of complainant occurred, therefore, complainant after visiting the ops no.1 and 2 for five times after the surgery lost follow up as there was no improvement in the eye sight of complainant rather it was deteriorating and as such it cannot be said that complainant himself was negligent as he lost follow up. Moreover, ops no.1 and 2 have taken two almost contradictory stands in the written version as well as at the time of arguments because in the written version, the ops no.1 and 2 have averred that at the time of surgery of right eye of complainant, his blood sugar was found normal although there is no proof on file in this regard whereas during the course of arguments, ops no.1 and 2 have relied upon above said abstract Ex.R24 to show that there are more chances of infection and complications after surgery in the patients of diabetes mellitus. It is proved on record that op no.2 at the time of even first visit of complainant in his hospital without getting necessary tests/ investigations of blood sugar etc. directly conducted surgery of cataract of right eye of complainant and when said operation has failed and his eye sight has lost, then ops no.1 and 2 are trying to take shelter and covering up the medical negligence on the ground that such complication is due to disease of diabetes mellitus. So, it can be said that either the reason of Phthisis bulbi i.e. shrunken/ non functioning of eye of complainant is due to wrong cut in the eye while performing cataract surgery or is due to direct complication after wrong cataract surgery conducted by op no.2. We are of the considered opinion that no more expert opinion is required in this case because it is proved on record that after cataract surgery of right eye of complainant on 07.08.2017 complainant visited five times to the ops no.1 and 2 and op no.2 prescribed medicines as well as eye drops to the complainant but when there was no improvement in the eye sight of complainant rather it was deteriorating day by day, therefore, complainant also approached other hospitals including S.D. Mahabir Dal Hospital of Bathinda where Dr. Gaurav Mangla clearly observed the factum of end of cornea but despite second procedure done on 03.09.2017 his eye sight of right eye could not be saved. The complainant has become permanent disabled as his total eye sight of right eye has been lost and complainant after his physical appearance in the Commission has also shown that now he has got implanted a stone/ duplicate eye. So, the complainant has duly proved medical negligence in this case and when his eye sight has been completely lost after surgery and he has to get implanted a stone eye, then in our considered opinion no other medical expert opinion is required in this case as another medical expert opinion of another Eye Specialist Dr. Gaurav Mangla who has conducted second operation of complainant is already on file and moreover it is commonly known that success rate of such operation is very high and no such severe and major complication of lost of eye sight occurs after cataract surgery. Moreover, the version of ops no.1 and 2 itself that keeping in view the financial position of complainant all the post operative treatment including operation by Dr. Gaurav Mangla were performed free of cost strengthens the plea of medical negligence and makes it clear that when the ops no.1 and 2 found that they have performed wrong cataract surgery on the person of complainant and despite medications after surgery there was no improvement, then ops no.1 and 2 may have got done further treatment free of costs but ultimately the complainant has lost his complete eye sight of right eye and as such ops are liable to compensate the complainant as he has become permanent disabled due to medical negligence of op no.2 and has to live miserable life. The authority relied upon by learned counsel for ops no.1 and 2 in case of M.A. Biviji Versus Sunita & Ors. (supra) is not applicable in this case. So in our considered view the complainant is entitled to an amount of Rs.5,00,000/- as compensation on account of above said disability due to medical negligence besides compensation for harassment for ops no.1 and 2. The op no.2 was insured with op no.3 for the sum insured amount of Rs.5,00,000/- for the period 28.05.2018 to 27.05.2019 as is evident from policy schedule Ex.R3/1. The operation of complainant was conducted by op no.2 on 07.08.2017 and according to complainant he had been approaching the ops no.1 and 2 for medical negligence up to first week of August, 2018 whereas from the record available on file it is evident that complainant lastly visited the ops no.1 and 2 on 18.10.2017 and as such matter of indemnification of above said sum insured amount is between op no.2 and 3 and initial liability to pay the compensation to the complainant is of ops no.1 and 2.
13. In view of our above discussion, we allow the present complaint and direct the opposite parties no.1 and 2 to pay the amount of Rs.5,00,000/- as compensation on account of medical negligence and permanent disability to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be entitled to receive the above said amount of Rs. five lacs from ops no.1 and 2 alongwith interest @6% per annum from the date of this order till actual payment. We also direct the ops no.1 and 2 to further pay a sum of Rs.50,000/- as compensation for harassment and Rs.20,000/- as litigation expenses to the complainant within above said stipulated period. The matter of indemnification is between ops no.2 and 3 and as such op no.2 can seek indemnification from op no.3 after payment to the complainant if it is found that medical negligence occurred during the period of policy. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member Member President
Dt. 10.12.2024. District Consumer Disputes
Redressal Commission, Sirsa.
