Order dictated by:
Ms.Rachna Arora, Presiding Member
- Present complaint has been filed by Amarjit Kaur under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations of negligence in service as well as deficiency in service against the opposite parties.
Brief facts of the case
- Brief facts of the case are that on 29-09-2015 complainant along with her husband approached Bhatia Hospital for routine check up and the concerned doctor of the said hospital advised the complainant to get installed lens in the left eye. The complainant did not prefer to get the same installed in her left eye from the said Bhatia Hospital.
- Later on complainant alongwith her husband approached Swastik Eye Care Centre Amritsar on 05-10-2015 and opposite party No:1 Namely Dr. Amita Joshi was available in the said centre. The complainant consulted Opposite party No. 1 regarding installation of the lens in her left eye and opposite party advised the complainant to get Lens installed in her left eye for which Opposite party No. 1 demanded a sum of Rupees 20,000/- for installation of lens. Later on the matter was settled in Rs. 16000/- which was paid to opposite party No.1 in advance by the complainant . But opposite party No.1 never issued any receipt for the same. The complainant was advised by opposite party No.1 to come on the next day i.e. 6.10.2015 . On 6.10.2015 when the complainant reached to opposite party No.1 , then opposite party No.1 took the complainant in the Operation Theatre for the installation of the lens. However, after 3 ½ hours opposite party No.1 brought back the complainant from the Operation Theatre saying that some damage has been caused to her left eye ( Akh Da Parda Phat Gya Hai) . Opposite party No.1 had put some medicines in the left eye of the complainant and recommended some medicines to the complainant and asked the complainant to come daily. Due to negligence of opposite party No.1 lens cannot be installed properly. To the utter surprise of the complainant no progress was found in the left eye of the complainant. On 20.10.2015 opposite party No.1 took the complainant to opposite party No.2 hospital, where Dr. Ranjit Singh examined the left eye of the complainant and advised the complainant to get eye repaired immediately as the said left eye has been damaged.
4. On 21.10.2015 left eye of the complainant was operated in the opposite party No.2 hospital . Till date the complainant is under treatment of opposite party No.2 . But instead of any improvement in the left eye it had been damaged completely due to lapse and negligence of opposite parties. There is no visibility from the said left eye. The complainant approached the opposite parties many a times and made several requests to them to compensate the complainant for an amount atleast 18 lacs for the negligence of the opposite parties due to which left eye has been totally damaged. Even the complainant moved various written complaints against opposite party No.1 to Chief Minister, Punjab, Secretary Health Department, Medical Council of India, Deputy Commissioner , Amritsar etc. The act of the opposite parties amounts to negligence in service, deficiency in service as well as unfair trade practice . Vide instant complaint, complainant has sought for the following reliefs:-
- Opposite parties be directed to pay compensation of Rs. 18 lacs to the complainant for damaging the left eye of the complainant permanently and negligently alongwith interest @ 12% op.a.
- Cost of litigation may further be awarded to the complainant.
- Any other relief to which the complainant may be found entitled may also be awarded to the complainant.
Hence, this complaint.
5. Upon notice, opposite party No.1 appeared and filed written version in which it was submitted that patient Amarjit Kaur came to Swastik Eye Care Centre on 5.10.2015 where she was treated by opposite party No.1. The complainant had complaint of marked diminished vision of left eye which was less than finger counting and as per medical history she was known case of Diabetes with gastric problem. On fundus examination of her eye, it was found that her left eye was having mature cataract for which surgery for removal of cataract was the only answer and the retina was not visible at that stage due to the presence of mature cataract. Her husband gave consent for the treatment by way of surgery. Patient as well as her husband were explained prognosis of the treatment . All necessary preliminary investigations were performed before the surgery and precautions for the same were kept in mind. So on 6.10.2015 opposite party No.1 under local anaesthesia under all aseptic conditions in the fully equipped operation theatre of the Swastik Eye Care Centre performed anterior vitrectomy alongwith removal of the cataract thus as per medical condition of the patient, she decided to put IOL (Intra Ocular Lens) in the second stage. On the first post operative day, everything was fine except for mild corneal edema as the patient could not be put on necessary post operative anti inflammatory medicines due to her pre-existing gastritis . She was given utmost care by opposite party No.1 and personal touch was given to the patient. The patient was examined on daily basis for next 10 days. However, after 10th post operative day when the corneal edema subsided opposite party No.1 was able to examine her fundus. On examination there was high suspicion of retinal detachment which could have been pre existing. Considering the status of retina on 20.10.2015 opposite party No.1 took the patient alongwith her to well renowned retinal surgeon of the city Dr. Indu in Dr. Daljit Singh Eye Hospital. Keeping in view the agony of the patient , opposite party No.1 requested the doctor to perform all the necessary tests free of costs which she duly obliged . Since opposite party No.1 charged Rs. 16000/- from the patient for her treatment by way of surgery , same amount was hand over by opposite party No.1 to Dr. Indu Singh for the treatment to be given by her to the said patient so as to avoid the extra burden for next surgery. On 21.10.2015 the patient was operated upon for retinal detachment without any delay by Dr. Indu R. Singh. After the second surgery in Daljit Singh Eye Hospital, opposite party No.1 lost touch with the patient as she was being treated by Dr. Indu R Singh and not by opposite party No.1 Moreover, present complaint is blatantly barred by time . As per allegations complainant was treated by opposite party No.1 from 5.10.2015 till she was operated in Dr. Daljit Singh Eye Hospital on 21.10.2015 only. Cause of action is alleged to have been accrued in October 2015 . By making complaint against opposite parties to any of the authority will not extend or create fresh cause of action. The complaint is not either maintainable since no evidence-based allegations has been leveled in the complaint against opposite party No.1. No evidence has been placed on record to show that there was any negligence or deficiency or delay in service at the hands of opposite party No.1. Further more , since during relevant time opposite party No.1 was assured that New India Assurance Company Ltd., Branch 117, The Mall, Amritsar having “Doctor’s Indemnity Insurance/Professional Indemnity Insurance” vide cover note No. 415937 dated 1.5.2015 , therefore, insurance company with the following particulars is also a proper and necessary party in the present complaint:
“The New India Assurance Co.Ltd., Head office New India Assurance Building, 87 Mahatma Gandhi Road, Fort, Mumbai 400 001 through its Chairman, service through its Branch Manager at 117, The Mall, Amritsar”.
Since as per the allegations of the complainant in the complaint, the matter in dispute require lengthy and detailed evidence and cannot be disposed of in summary trial due to its complicated nature , therefore, it is the civil court which is competent to settle the allegations in the complaint after detailed trial by way of evidence . Since no present status of the medical condition of the left eye of the complainant as of now for which the complainant came for treatment to opposite party No.1 has been described in the complaint nor any treatment record with regard to its status till date has been produced with the complaint. While denying and controverting other allegations, dismissal of complaint was prayed.
6. Opposite party No.2 in its written version has submitted that complaint is not maintainable as there is no specific negligence or deficiency in service has been attributed to the replying opposite party No.2 and the complaint having been filed two years thereafter is time barred and is liable to be dismissed on this ground. The complainant visited opposite party No.2 hospital alongwith opposite party No.1 on 20.10.2015 with the complaint of decreased vision in her left eye after cataract surgery which was earlier performed by opposite party No.1. During examination replying opposite party No.2 hospital , it was found that patient i.e. complainant was Aphakic (without Intra Ocular Lens) and she has inferior retinal detachment in her left eye. The Endothelial cell count was found to be low. The complainant was advised surgery for repairing retinal detachment for which she gave her voluntary consent. The complainant was asked to come for follow up on different dates. She came on 22.20.2015, 23.10.2015, 26.10.2015 and 30.10.2015, 2.11.2015, 12.11.2015, 8.12.2015, 13.1.2016, 18.2.2016 , 29.2.2016, 5.4.2016 , 18.5.2016 and lastly on 21.7.2016 for follow up when her retina was found to be attached fully with Aphakic glasses (glass with number minus plus 10d). She has reasonable good vision. Thus the left eye was saved after retina surgery from replying opposite party No.2 hospital. There is no fault on the part of opposite party No.2. While denying and controverting other allegations, dismissal of complaint was prayed.
7. Opposite party No.3 in its written version has submitted that present complaint is time barred. Moreover, no notice from the insured has been received by opposite party No.3. As per terms and conditions of the policy of professional indemnity Insurance, insured is bound to inform the insurer about the circumstances that may give rise to the claim being made against the insured. In this case no information was received by insured opposite party No.1, therefore, opposite party No.3 is not liable for any Professional Indemnity Insurance Claim which may be ordered to be paid by the insured. Opposite party No.1 has been covered under Professional Indemnity Insurance policy upto to Rs. 5 lacs only and for any claim beyond and exceeding that limit, only the insured i.e. opposite party No.1 will be liable. There is no contraction relation between the answering opposite party No.3 and the complainant, therefore, the present complaint is not at all maintainable against the answering opposite party No.3.
8. Alongwith the complaint, complainant has filed attested copy of card of Bhatia Hospital Ex.C-1, attested copy of card of Swastik Eye Care Centre Ex.C-2, attested copy of card of Dr Daljit Singh Eye Hospital Ex.C-3, photocopy of complaint moved by the complainant with various authorities on 30.5.2016 Ex.C-4, , copy of letter written by Medical Council of India dated 10.8.2016 to Registrar, Punjab Medical Council Ex.C-5, copy of letter Dt. 26.9.2016 Ex.C-6, copy of order dated 29.11.2017 passed by Medical Council of India Ex.C-7, copy of card issued by Dr. Daljit Singh Eye Hospital Ex.C-8.
9. On the other hand opposite party No.1 alongwith written version has filed copy of hospital record of Swastik Eye Care Centre Ex.OP1/1, copy of consent and authorization for treatment signed by husband of complainant dated 5.10.2015 Ex.OP1/2, copy of Insurance cover note Ex.OP1/3, copy of MS degree of opposite party No.1 Ex.OP1/4.
10. Opposite party No.2 alongwith written version has filed medical record Ex.OP2/A to OP2/C, History taken from patient Ex.OP2/D, consent form Ex.OP2/E and OP2/F, copy of medical record and follow up Ex.OP2/G to Ex.OP2/L, copy of card of Swastik Eye Care Centre Ex.OP2/M to Ex.OP2/N.
11. Alongwith written version opposite party No.3 filed affidavit of Sh.S.K.Sharma,Sr.Divisional Manager Ex.OP3/A, copy of policy Ex.OP3/B.
12. We have carefully examined all the documents/evidence produced on record and have also intently heard and perused the arguments oral as well as written as duly put forth by the learned counsels along with the incidental scope of adverse inference for some of the vital documents that have been somehow ignored to be produced by the contesting litigants. We find that the prime dispute has erupted at the failed Cataract surgery conducted by the opposite party No.1 Surgeon at her Hospital that had to be subsequently tried to be set right through another corrective surgery by opposite party No.2 surgeon in their hospital which also could not succeed.
13. The learned counsel for the complainant, in order to prove his allegations, has produced sufficient documentary evidence on record (Ex.C1-C8) indicating the material ‘scope & potential’ of the complainant’s ‘allegations’ at the hands of opposite parties. Further, the complainant produced exhibits C3,C7 and Ex.C8 for sure indicates continuous post-surgery complications and the need of its continuing management. Taken together, the above goes well to collectively prove that the complainant has suffered a lot on account of clear-cut ‘medical negligence’ (along with other initials) on part of the opposite party No.1 Surgeon Doctor and going by the principles of ‘Res Ipsa Loquitur’ i.e. (things speaks for itself) in law the ‘onus of proof’ gets shifted to the opposite parties to repel/rebut the charge of negligence. We find that opposite party No.1 has admitted in her written reply and through the accompanying affidavit, that the opposite party no.1 did operate the complainant on 06.10.2015 to remove cataract in the left eye and for further implant of Lens and received Rs.16000/- from the complainant. But the lens could not be implanted as admittedly the cataract was not removed. The patient /complainant was discharged on 06.10.2015 but she had reported pain & discomfort during her subsequent many visits for post operation complications. It is an admission by opposite party No.1 in her duly filed reply that the condition of patient/complainant’s retina of left eye was not assessed pre-operatively as well as post operatively which act/ommission of opposite party No.1 speaks of negligence on her part. We further find that it is also admitted by opposite party No.1 itself that it was only after 10 days of sufferings of pain and agony by complainant after the cataract surgery by opposite party No. 1 she could know of retinal detachment of left eye of the complainant. We further find that in order to cover up her negligence committed during Cataract surgery she even took the patient along with her to a well renowned retina surgeon of the city and even requested the opposite party No.2 to perform all the necessary tests free of cost( No test reports produced on record) and opposite party No. 1 even handed over the amount which she got from the patient to the opposite party No.2 which act of the opposite party No.1 is not at all acceptable as we never see a doctor/ medical professional having given proper treatment as per established medical procedures is ever so kind and obliged to take a patient to other doctor/surgeon paying fees from her own pocket for corrective surgery. The conduct of opposite party No.1 speaks of gross negligence at her end while doing cataract surgery which has damaged the left eye of the complainant for ever and there is no visibility from the left eye. It sufficiently proves ‘negligence’ on the opposite party No.1’s part since had they exercised even a moderate caution/care in time the complainant’s left eye could have been saved from the subsequent ‘surgery’ and the associated collateral discomfort and expense. We are convinced from the arguments and medical literature produced by the complainant side. That even as per standard medical literature on the retinal detachment , it is a disorder of the eye in which the retina peels away from its underlying layer of support tissue. The initial detachment may be localized, but without rapid treatment the entire retina may detach, leading to vision loss and blindness. It is a medical emergency. Permanent damage may occur, if the detachment is not repaired within 24/72 hours, but admittedly the medical negligence on the part of the opposite party No. 1 is all the more glaring because in the present case, the corrective retina surgery of the complainant was done at the instance of opposite party No. 1 after more than 10 days by the opposite party No.2 which also failed and could not save the eye. The retinal detachment is an uncommon complication of cataract surgery and does not occur in usual course but if the retinal detachment has occurred as in the present complaint, the doctor opposite party No.1 must have been negligent in performing the cataract surgery. It also speaks of the poor pre-surgery diagnosis and very poor post-surgery recovery management at the hands of the opposite parties because of which the complainant has become a social recluse after having lost sight in the left eye and she would require a long term psychotherapy to come out of the sad mental state.
14. On the other hand the opposite party No. 1 doctor has asserted that the condition of complainant’s retina of left eye could not be assessed pre- operatively due to cataract and post-operatively due to corneal edema. The statement in the absence of any cogent evidence cannot be judicially accepted although it may somehow go un-rebutted and un-contested by the complainant side. Also, as per the settled law, not even an ‘expert opinion’ shall be mandatory in the case of medical negligence governed by the principles of ‘Res Ipsa Loquitur’ in law while determining civil/consumer liability as per the statute law. By the time, it has been a settled law that an averment/allegation in the absence of ‘evidence’ shall amount to a bald statement only; and, going by the evidence coupled with collateral multi-shot efforts/petitions, even if, we admit the above assertion in its presumed probability, we do find sufficient and satisfactory ‘evidence’ on record indicating the statutory infringement of consumer rights of the present complainant. Further, it is indeed sad as to learn that a qualified and experienced opposite party No. 1 doctor could have negligently perform in a serious cataract surgery. The opposite party No.1 has submitted that all the necessary preliminary investigations of the complainant were performed before the surgery, but we find that no record has been produced by the opposite party No.1 with regard to the tests which might have been carried out before taking up the surgical procedure upon the complainant. The hospital did not produce the test reports on record. The depositions in the absence of supporting evidence amount to nothing more than ‘bald’ statements only. Further, we have to state that we respectfully concur with the judgments of the senior courts as cited out by the OP’s but even these do not assist them purposefully on account of varying ratios.
15. We are further strengthened in our overall above legal contention by virtue of the rulings as made out below that have lead us to adjudicate the present complaint in the instant way.
16. The opposite parties have alleged that the present complaint is barred by time, but we are not inclined to accept this plea on the point of limitation. We find that this is the case of proved medical negligence and cause of action remains continuous till the patient or the complainant comes to know about the real injury and its origin and cause. Moreover it is by now a settled law that in cases of medical negligence, no straight jacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case has to be decided on its own facts.( Dr. V.N.Shrikhande versus Mrs. Anita Sena Fernandes Civil Appeal No.8993 of 2010 Supreme Court).
That recently a private hospital and its doctor have been held guilty of medical negligence by the Hon’ble Delhi state consumer commission, which has directed them to pay Rs.19 Lakh to complainant who suffered vision loss after a surgery. The Hon’ble commission also asked the hospital to deposit Rs.20 Lakh with the Consumer Welfare Fund maintained by the Commission( Parkash Sharma versus Dr. Sharad Lakhotia Complaint case No. 283/2001 decided on 27.04.2017 by Hon’ble Delhi State Consumer Commission).
17. In the light of the all above, we hold the opposite party No.1 Surgeon guilty of ‘deficiency in service’ coupled with ‘exploitation’ of the subservient status/role of the patient complainant. The complainant has sought Rs. 18 Lakh as compensation in view of law laid down by Delhi State Consumer Commission but we deem it fit to direct and thus order opposite party No.1 to pay Rs.11,00,000/-(Rupees Eleven Lacs) as compensation for causing her financial loss, physical and mental pain etc besides Rs.10,000/- as litigation cost within 30 days of the receipt of the copy of these orders. However, the opposite party No.1 doctor shall be at liberty to claim the amount of present adverse award from her insurers i.e. opposite party No.3 as per the applicable terms of the related insurance policy with the applicable inter-se arrangement. We find no evidence of negligence against opposite party No.2 as such no compensation is payable by them. Copies of the order be communicated to the parties free of charges. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
