Haryana

Ambala

CC/10/2014

KAMLA RANI - Complainant(s)

Versus

DR PRAFFUL MANJHI - Opp.Party(s)

HARISH BAKSHI

27 Jun 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

 Complaint Case No.      : 10 of 2014

Date of Institution         : 03.01.2014

Date of Decision            : 27-06-2017

 

 

Kamla Rani wife of Sh. Prithi Chand, aged about 70 years, R/o Village Ullana, PO Ghanaur, Tehsil Rajpura, District Patiala (Punjab).                                                           

……Complainant.

 

Versus

 

1.       Dr. Prafful Manjhi, head of the unit, MM Institute of Medical Sciences & Research, Mullana, District Ambala.  

2.       MM Institute of Medical Sciences & Research, Mullana, District Ambala through its Chairman Sh. Tarsem Garg.

3.       Dr. Chandan Mehta the then Senior Resident Doctor, MM Institute of Medical Sciences & Research, Mullana, District Ambala.

4.       New India Assurance Company Limited through its Branch Manager Ambala, City.  

  

                                                                   ……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:   SH. D.N. ARORA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                   MS. ANAMIKA GUPTA, MEMBER.

                  

Present:       Sh. Harish Bakshi, counsel for complainant.

                   Sh. P.S. Sharma, counsel for the OP No. 1 and 3.

                   Sh. Mohinder Bindal, counsel for OP No. 4.  

 

ORDER.

 

                    In nutshell, brief facts of the complaint are that the complainant approached the opposite parties No. 1 to 3 in the first week of the September 2013 for the check up of his left eye as he was feeling some problem and after check up the opposite party advised the complainant for surgery of cataract (white motia) of his right eye and was asked to come on 12-10-2013 to get it operated. Accordingly, complainant went to the Institute and deposited the charges/fees to the tune of Rs. 3,000/- and got admitted by OP No. 1 to 3 and her left eye was operated on 12-10-2013 and her dressing of the left eye was removed on the following day and after its removal, the complainant was discharged from the institute/hospital with the advice for follow up after two days. It is further submitted that after removal of dressing from the left eye on 13-10-2013, the complainant was not able to see clearly, specs were also applied. There was some pain in the operated eye on 13-10-2013 but doctor told that it will decrease day by day but instead of decreasing it go on increasing and ultimately the pain become unbearable then the complainant again visited the hospital on 16^th and 17^th of Oct. 2013 but every time, OP No. 1 to 3 told that it will take time to recover. It is further submitted that the complainant could not wait more as the pain was so acute and even the pus cells were seen oozing out of the left eye and visited the OP No. 1 to 3 on 16-10-2013 upon which the OP changed some medicine but even the vision was decreasing day by day. Thereafter, complainant visited the hospital on 17^th and 18^th of Oct. 2013 and ultimately the complainant was referred to PGI Chandigarh for urgent vitrectomy for L.E. Endophthalmitts (infection) and was so endorsed on the back of the follow up and discharge card by the OP No. 1 who also told that the operation conducted by them on 12-10-2013 with the help of machine was not successful as only those patients suffered the infection in their operated eye who were operated with the help of machine and complainant was also operated with the machine and had the first party No. 1 to 3 checked the machine properly before its use it would not have infected the operated eyes of the patients including the complainant and thus infection has been caused due to the negligence of the opposite parties No. 1 to 3. It is further submitted that the OP No. 1 to 3 have operated the eyes of five patients on 12-10-2013 out of which the operation of three patients was not successful including the complainant and all the three suffered acute postoperative endophthalmitts. It is further submitted that complainant was also made to wait in the PGI for 3-4 hours to start his treatment on 19-10-2013 itself and was remain admitted there till 26-10-2013 and during this period though there was no improvement in the infection but the pain was somewhat less due to the intake of pain killers. The complainant was discharged on 26-10-2013 from the PGI with follow up treatment with the advice to visit PGI on 30-10-2013. It is further submitted that the complainant was still suffering with acute pain and there was no improvement in the infection thus complainant again visited the PGI on 30-10-2013 where the attending doctor changed the medicine and asked to come on 06-11-2013 but there no improvement even after the change of medicine. Thereafter, the complainant visited the PGI on 06-11-2013 where the doctors told the complainant that infection is so acute that it is not advise able to wait further and told that there is no alternative except to remove the left eye of the complainant otherwise it will also damage adjoining organs and removed the left eye of the complainant on 29-11-2013 and discharged on 03-12-2013 with the advice to follow up treatment on 11-12-2013. The complainant has lost her left eye due to the negligence on the part of the opposite parties No. 1 to 3 while operating her eye with the help of machine without proper sterilization which amounts to deficiency in service on the part of the opposite parties. The complainant had to suffer a lot with acute pain since 12-10-2013 and he has also spent an amount of Rs. 50,000/- on his treatment. The complainant is also under great mental tension due to the loss of his right eye permanently due to the negligence on the part of the opposite parties and shall not be able to see the world for the rest of her life which cannot be compensated in terms of money but sill the complainant is entitled to recover the amount so spent due to the negligence on the part of the opposite parties, the cost of pain and sufferings and mental tension amounting to Rs. 10,00,000/- from the opposite parties. As such, the complainant prayed the opposite parties may kindly be directed to pay Rs. 10,00,000/- as compensation on the account of negligence to the complainant.

2.                Upon notice, OPs appeared through counsel and filed reply by the OP No. 1 and 2 raising preliminary objection qua maintainability of complaint, cause of action and concealments of the true and material facts.  It has been submitted that the Op No. 2 was duly insured with the OP No. 4 for the period 18-11-2012 to 17-11-2013 vide policy No. 35350236120200000033 dated 16-11-2012 and the incident has been alleged by the complainant of the month of September 2013, during the period the OP No. 2 was duly assured with the New India Assurance Co. for all intents and purposes. It is submitted that the complainant was not operated by OP No. 1 Dr. Prafful Manjhi nor she was checked and advised by OP No. 1 Dr. Prafful Manjhi. She was operated by Dr. Chandan Mehta, the then Senior Resident Doctor i.e. OP No. 3. The complainant was attended with due care, skill and diligence. It is further submitted that the complainant came to eye OPD with the complaint of diminution of vision in both in eyes, which was painless progressive and grandual. She was examined By OP No. 3 and was advised ratinal specialist review and she came to hospital on 11-10-2013 for retina surgeon review. On examination :- There was B/L cataract left eye> right eye and Fundus was having right eye wet ARMD (age related macular degneration) and left eye mild C.R. degeneration i.e. retinal problem then she was advised for routine investigation to rule out hypertension and diabetic mellitus. Her BP was systolic 150 mg of hg and diastolic 100 mm of hg and Blood sugar random was 110 mg/dl. And she was advised medicine review as she was known case of hypertension and was on treatment. The complainant was advised for L caract surgery with IOL (Intra Ocular Lens) Implantation under high risk for hypertension and ratinal problem. The complainant came to eye OPD on 12-10-2013 for L cataract surgery with IOL implantation, the complainant got admitted in eye ward on the same day & given consensual consent for the risk of surgical procedure and outcome. All the surgical complication explained to the patients which are mentioned in consent form even a special high risk consent was also taken. The complainant was operated by Dr. Chandan Mehta OP No. 3 with best skills and diligence for L eye under aseptic condition the surgery was done by phaco-emulsification under local anesthesia.  There was no intra operative complication. Surgery was uneventful i.e. without any complication and the PC IOL was implanted successfully L eye closed with pad & bandaged. Thereafter, the complainant was advised to take oral medicine tablets of Antibiotics, painkillers, antacid, oral steroids and anti-hypertensives she was taking day post operatively. On 13-10-2013 the eye pad and bandage of the complainant was removed and on examination his visual acuity was FC 3 meter (Finger counting).

          As per S/L (Slit Lamp) examination

• Wound was closed
• Cornea was having mild oedema
• A/C – Formed
• Fundus was visible due to air in the A/C

 

          After discharge, the complainant visited on 15-10-2013 for follow up treatment and on examination : -

• L VA (left visual acuity) was HMCF (Hand movement counting fingers)
• S/L examination – Cornea was hazy
• Hypopyon in A/C
• No fundus an DDO examination

• I/O examination – Fundus no visible due to hazy media

 

                   The complainant again came on 16-10-2013 in the eye OPD for follow up. On examination there was no deterioration of symptoms and sign so was observed for 24 hrs continuing tablets and antibiotic eye drops and cycloplegic eye drops. The complainant came on 18-10-2013 for floow up and on examination there was no further improvement of symptoms and signs. There, the complainant was advised for L viterctomy, which is the 2^nd line of treatment if patient does not improved after IVAB, therefore, the complainant was referred to the PGI Chandigarh for further investigation. The complainant visited the hospital on 11-10-2013 as per the advise wherein the doctors (Retina specialist) i.e. OP No. 3 came there and examined the complainant and advised for surgery of her left eye under guarded visual prognosis. The complainant was also visited on 15-10-2013 and on examination she was diagnosed as a left acute post operative endophthalmitis, which was duly explained to the patient. The IVAB injection was given to the complainant for the infection. On 16-10-2013 the reported infection was stable and no pain was reported. The IVAB was repeated on 17-10-2013 and patient was observed for further 24 hours. When on 18-10-2013 the complainant came for the follow up, no sign of improvement was noted and accordingly the complainant was referred to PGI for further management and investigation. The surgery was done under aseptic condition after proper sterilization of all surgical instruments which were used for cataract surgery. All surgical instruments were autoclaved at the temp. of 121̊c fpr 1 hr as per recommendation. All the surgical equipments e.g. phaco – emulsification machine and microscope were work properly. There were no defects in the machine. All machines which were used in all patient worked well on 12-10-2013. There was no surgical negligence. All patients were operated under aspect condition after proper sterilization of all the surgical instruments which were used for cataract surgery. Rest of the averments made by the complainant are wrong hence, denied. As such, the OP No. 1 and 2 have prayed that the complaint is liable to be dismissed with costs.

                   OP No. 3 has not filed the separate written statement and counsel for the OP No. 3 has made a statement that the written statement given on behalf of the OP No. 1 and 2, be read as such also in the reply on behalf of the OP No. 3.

                   OP No. 4 through counsel appeared and filed reply raising preliminary objection qua maintainability of complaint, cause of action and concealment of true facts.  It has been submitted that the OP No. 4 accept the written statement filed by the OP No. 1 and 3 with regard to the alleged treatment provided to the complainant and the same be read as part of this written statement. As such, the OP No. 4 has also prayed that the complaint is liable to be dismissed with costs.

3.                To prove his version, counsel for the complainant tendered affidavit as Annexure CX alongwith documents as Annexures C1 to C-20 and closed the evidence. On the other hand, counsel for OP No. 1 to 3 tendered affidavit Annexure RX alongwith document as annexure R-1 to annexure R4 and closed the evidence on behalf of the OP No. 1 to 3 and counsel for OP No. 4 tendered affidavit as Annexure RY alongwith document as Annexure R-5 and closed the evidence on behalf of the OP No. 4.

4.                We have heard learned counsel for the parties and gone through the case file very carefully.  As per treatment record annexure C1, complainant was admitted on 12-10-2013 in Ophalmology department of M.M. Institute of Medical Science & Research Mullana (Ambala) for cataract surgery left eye and has operated on the same day and he paid necessary charges for the same as alleged by the complainant and was discharged on 13-10-2013 as per discharge report of hospital and complainant was advised to continue the medicine and come for check-up after two days but patient continue to have acute pain in operated eye, which was unbearable as alleged by the complainant and visited the hospital on 16^th, 17^th and 18^th for follow up but there was no relief. As per follow up record, patient had developed post operative endophthalmitis and was referred to PGI Chandigarh for further management by the treating doctor with the remarks that “referred to PGI Chandigarh for urgent vitrectomy as patient is case of L.E. Endophthalmitts”

                   Subsequently, the patient visited PGI Chandigarh on the next day i.e. on 19-10-2013 and remain admitted and under treatment till 26-10-2013 and was diagnosed at the time of admission as acute post operative endophthalmitis (total eye infection) Medical line of treatment continued but no improvement although the patient was on regular follow up as per record of PGI Chandigarh. Since there was no improvement, patient again approached to PGI Chandigarh on 30-10-2013 and ultimately Evs creation (removal of eye) left eye was done on 06-11-2013 and follow up the treatment up 24-12-2013 as per treatment record Annexure C2.

5.                On the other hand counsel for the OPs has argued that the surgery was conducted on 12-10-2013 and the patient was discharged on 13-10-2013 with the advise to continue medicines as prescribed for three days and come for follow up. As such he argued that during his stay at home he might have developed eye infection due to non-compliance of advise. He further argued that there is no such expert report to the effect that there is any negligence on the part of the treating doctor as the treating doctor used the surgical equipments e.g. phaco-emulsification machine and microscope properly. He further argued that treating doctor is the head of the unit department and as well as well experienced and well conversant with the such problems. Counsel for the opposite parties has relied upon the judgments cited in IV 2016 CPJ 37 (NC) titled as Dr. Sunisha Henry v. govind Prasad Dubey & Ors, wherein it is held that Medical Negligence – Eye surgery – loss of vision – alleged deficiency in service – District Forum allowed complaint- state commission dismissed appeal – Hence revision- sharp needle as well as blunt needle is used in surgery and merely because rupture occurred in the eye of complainant who was having chronic glaucoma for last 20 years and was operated before 10 years, no deficiency can be imputed on part of doctor who is ophthalmologist and fully qualified to operate- negligence not proved, case law cited in III 2016 CPJ 404 (NC) titled as Hans Maternity Home & Anr v. Daljit Kaur, III 2016 CPJ 446 (NC) titled as Tushar Maternity and surgical Nursing Home v. Dhanashri Dhananjay Savardekar & Anr and case law cited in III 2016 CPJ 527 (NC)  titled as KK Sharma v. Fortis Hospital & Ors.    

6.                 The complainant rebutted the arguments advanced by the counsel for the opposite parties. He argued that treating doctor had advised to the complainant to come after two days and further advised to take medicine as prescribed on the treatment record annexure C1 but due to unbearable pain, complainant visited the hospital on 15-10-2013 as admitted by the opposite parties meaning thereby he was suffering from acute pain in his operated eye. As such he visited the hospital on the gap of only one day. So, the version of the opposite parties is not believable that the infection might have been occurred after three days as the complainant remained only one day only at home after operation.  He further argued that there is no need of expert evidence, where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself”. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.

          Counsel for the complainant has relied upon the judgment laid down by the Hon’ble Apex Court in case titled as “V. Kishan Rao vs. Nikhil Super Specialty Hospital& Another” 2010 (2) RCR Civil 161, wherein claim of the complainant cannot be rejected on the ground that the expert witness not examined to prove negligence of doctor –it is not required to have expert evidence in all cases of medical negligence. In the present case res ipsa loquitur principle is applied. He further relied upon the case law laid by Hon’ble National Commission in case title as Tarun Thakore vs. Dr. Noshir M. Shroff (OOP No. 2015/2000 dated 24-09-2002) wherein the National Commission made some observation about the duties of doctor towards his patient. From those observations it is clear that one of the duties of the doctor towards his patient is a duty of care in deciding what treatment is to be given and also a duty to take care in the administration of the treatment.

7.                 In view of the above said facts discussed above, it is cleared that patient was operated for cataract surgery and developed post operative acute infection in eye within short time as admitted by treating doctor while referring the patient to PGI, Chandigarh and the same was diagnosed and endorsed by the doctor of PGI, Chandigarh on the treatment record annexure C2. It is also clear from the treatment record that there was no infection, no history of hypertension and diabetic mellitus or any other eye infection before surgery. As a result, the complainant had to loss her left eye permanently due to gross infection (endophthalmitis) occurred during the surgery. Apart from this, there is no record on the file that the complainant was ever informed or explained about the risk involved in the proposed treatment. Rather doctor is also duty bound to inform his patient about the risk involved in the proposed treatment. In the present case, treating doctor has also failed to explain the reason neither in his written statement nor by his counsel during the course of arguments, why the complainant has lost her left eye. There is no evidence which may prove that infection in the eye of the complainant post operative nor developed during surgery.  

                   In this regard counsel for the complainant has relied upon the case law cited in I (2006) CPJ 16 (NC) titled as Shyam Kumar v. Rameshbhai Harmandbhai, wherein Hon’ble National Commission has held that in para No. 7 is as under:- The issue that needs to be resolved is whether there is deficiency in service by the petitioner. The petitioner is fully aware when he checked the eyes of the respondent that there is a problem of glaucoma and also a problem of cataract. Being fully aware of condition of the patient, it was his duty to bring to the notice of the respondent about the condition and the risks involved in this operation which he did not do.   In such cases, the burden to prove that there is no negligence on the part of the treating doctor, is upon the treating doctor. But in the present case, opposite party has failed to discharge his burden to prove that there was no negligence on his part. In view of the above said discussion, we have no hesitation to hold that the complainant has lost her left eye due to the negligence of the treating doctor i.e. OP No. 3.

8.                 Now, we are coming to the point that what compensation amount to be awarded to the complainant. As per complainant’s version he has incurred the expenditure to the tune of Rs. 50,000/- including the expenses of medicines, doctor fee and transportation charges etc. and complainant has also placed some Bills as annexure C3 to C20 and the said version of the complainant has gone unrebutted.             

                   In view of the above said documents, the complainant had spent an amount of Rs. 50,000/- on her treatment, the complainant is entitled for the above said amount along with interest and costs and in such cases, apart from the amount spent by the complainant on the treatment, she is also entitled for compensation as she had lost her left eye permanently. In view of the totality and circumstances of the case, we assess the amount of compensation to the tune of Rs. 3,00,000/- (three lacs) along with the cost of proceedings amounting to Rs. 5,000/-. Thus, the complaint of the complainant is partly accepted and admittedly OP No. 2 is insured with the OP No. 4 as per Insurance Policy as Annexure R5, therefore, OPs (except OP No. 1) are directed to pay the awarded amount jointly and severally and comply with the following directions within a period of 30 days from the date of receipt of copy of this order:-

(i)      To pay an amount of Rs. 50,000/- along with interest @ 9 % per annum from the date of filing of complaint till its realization.

 

2. Also to pay a sum of Rs.3,00,000/- (three lacs) as compensation within stipulated period. Failing which, opposite parties are liable to pay interest @ 9 % per annum on the amount of compensation for the period of default.

 

3. Also to pay Rs. 5,000/- as cost of proceeding

 

                   Copies of this order be sent to the parties free of costs. File be consigned to the record room.

 

ANNOUNCED ON:      27.06.2017                          (D.N. ARORA)

                            PRESIDENT       

         

 

(PUSHPENDER KUMAR)

                                                                                      MEMBER

 

 

            (ANAMIKA GUPTA)

                                                                                      MEMBER