Haryana

Ambala

CC/310/2013

VED PARKASH - 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.      : 310 of 2013

Date of Institution         : 27.11.2013

Date of Decision            : 27-06-2017

 

 

Ved Parkash son Sh. Paras Ram, r/o house No. 67, near BSNL Tower, Village Mullana, District Ambala.  (Age 64 Years)                                                              

……Complainant.

 

Versus

 

1.       Dr. Prafful Manji, 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.       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 2.

                   Sh. Mohinder Bindal, counsel for OP No. 3.  

 

ORDER.

 

                    In nutshell, brief facts of the complaint are that the complainant approached the opposite party in the first week of the Oct. 2013 for the check up of his right 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 OP and deposited the charges/fees and got admitted by OP No. 1 on 12-10-2013 and his dressing of the right eye was removed on the following day and after its removal, the complainant was discharged from the institute/hospital with the advice to get it checked on 18-10-2013 from the OP No. 1. It is further submitted that after removal of dressing from the right 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 14^th and 15^th of Oct. 2013 but every time, OP No. 1 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 right eye and visited the OP No. 1 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 R.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 him 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 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. It is further submitted that the OP No. 1 has 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 18-10-2013 itself and was remain admitted there till 25-10-2013 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 25-10-2013 from the PGI with follow up treatment with the advice to visit PGI on 06-11-2013. 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 right eye of the first party otherwise it will also damage adjoining organs and removed the right eye of the complainant in between the night of 06/07-11-2013 and discharged on 09-11-2013. The complainant has lost his right eye due to the negligence on the part of the opposite parties while operating his 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. 30,000/- on his treatment. The first party 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 his 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 OPs are not liable to pay any compensation to the complainant. In any case, the Op No. 2 was duly insured with the OP No. 3 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. The complainant was attended with due care, skill and diligence. It is further submitted that the complainant came to eye OPD on 24-09-2013 with the complaint of diminution of vision in both in eyes, which was painless progressive and grandual. The visual acuity for distant vision was 6/12 in the R/E and 6/18P in the L/E the complainant was examined under dilated pupil these was no history of major systemic illness. On examination it was found that there was B/L IMSC R>L and fundus was normal. The complainant was advised for routine investigation to rule out hypertension and diabetic mellitus. The complainant again came to eye OPD on 12-10-2013 for cataract surgery with IOL (Intra Ocular Lens) 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. The complainant was operated for right eye under aseptic condition the surgery was done by phacoemulsification under topical an aesthesia.  There was no intra operative complication. Surgery was uneventful i.e. without any complication. On 13-10-2013 the eye pad and bandage of the complainant was removed and on examination his visual acuity was FC 3 meter. On slit lamp examination it was revealed that : -

• Wound was closed
• Cornea was clear
• 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 : -

• VA was 6/18
• These was no pain & redness
• These was no symptoms and sign of acute post OP endophthalmitis

The complainant was advised to continue same treatment and advised to follow up on next day. The complainant again came on 16-10-2013 with complaint of sudden loss of vision associated with pain in the right eye. On examination

• VA was HMCF
• S/L examination :- cornea was hazy
• Hypopyon in A/C
• No fundus glow an DDO examination
• I/O examination Fundus not vision due to hazy media.

 

                   The complainant was diagnosed as a acute post operative endophthalmitis. Further treatment and prognosis of the disease was explained to the complainant and IVAB (Intravitreal anti biotics) injection of vancomycin 1 mg/0.1 ml and ceftazidime 2.25 mg/0.1 ml and started with oral antibiotic ciprofloxacin (500mg) twice daily. After injection eye closed with pad & bandaged and advised to follow up on the next day. The complainant again came on 17-10-2013 in eye OPD for further management. On examination there was no improvement of symptoms and sign. Again the complainant was repeated for IVAB of both vancomycin and ceftazidime the outcome and further management of acute post endophthalmitis was explained to the complainant. Again the complainant came on 18-10-2013 for follow up. On examination there was no improvement of symptoms and sign. Therefore he was advised for vitrectomy, which is the 2^nd line of the treatment if patient does not improved after IVAB, therefore, the complainant was referred to the PGI Chandigarh for further investigation and management. The complainant went to the PGI and admitted there on 18-10-2013 for further management. He got treated there till 25-10-2013. 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 machine 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 through counsel 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. 3 accept the written statement filed by the OP No. 1 and 2 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. 3 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-26 and closed the evidence. On the other hand, counsel for OP No. 1 and 2 tendered affidavit Annexure RX alongwith document as Annexure R-1 and closed the evidence on behalf of the OP No. 1 & 2 and counsel for OP No. 3 tendered affidavit as Annexure RY alongwith document as Annexure R-3 and closed the evidence on behalf of the OP No. 2.

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 right 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 for R.E. Endophthalmitts”

 

                   Subsequently, the patient visited PGI Chandigarh on the next day i.e. on 18-10-2013 and remain admitted and under treatment till 25-10-2013 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 annexure C2. Since there was no improvement, patient again approached to PGI Chandigarh on 30-10-2013 and ultimately Evs creation (removal of eye) right eye was done on 06-11-2013 and follow up the treatment up 20-12-2013 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 three 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 his right 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 his right 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 his right eye due to the negligence of the treating doctor i.e. OP No. 1.

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. 30,000/- including the expenses of medicines, doctor fee and transportation charges etc. and complainant has also placed some Bills as annexure C3 to C26 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. 30,000/- on his 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, he is also entitled for compensation as he had lost his right 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. 3 as per Insurance Policy as Annexure R3, therefore, OPs 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. 30,000/- 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