The instant complaint has been filed by Smt. Bijali Sarkar u/s.12 of Consumer Protection Act, 1986 with a prayer for granting compensation of Rs. 10, 00, 000/- against the O.P No.1/Doctor for his gross negligence and deficiency in service and also an award of Rs. 15, 000/-for cost of the treatment as well as an award of Rs.1, 50, 000/- towards cost of the litigation.
The fact of the case, in a nutshell, as per complaint, is that, on 08/11/14 the complainant (Senior Citizen) felt irritation and swelling in her right eye with pain and haziness. Then she attended the doctor’s chamber of O.P.No.1/Dr. A. Sen Sharma on 09/11/14 to consult at the Medicine Shop which named and styled as ‘M/S. Swarnalata Medical Stores, Haribari, Kamakhyaguri.
The complainant on seeing the display board in the said medicine shop, she became aware that O.P.No.1 is a Consultant Eye Surgeon and Specialist in the field of eye treatment and accordingly, she got an appointment of said doctor on 09/11/14 and as such, on that date O.P.No.1 examined her at the said chamber and the complainant disclosed about her suffering being irritation and burning sensation and swellingness in her right eye. The O.P.No.1/doctor prescribed two eye drops and one ointment and advised her to apply the medicines viz. “Flarex EID eye drop” which contained the active ingredient of fluorometholone acetate which belongs to a group of “Steroids” or “Corticosteroids”. The photocopy of prescription of said doctor is Annexure- A.
After applying the said medicine, the condition of the affected eye of the complainant became deteriorated. The right eye of the complainant became reddish and swelled together with intolerable irritation. The complainant reported the said fact to O.P No.1/Doctor through her son but the O.P.No.1 advised her to apply the medicine and doctor disclosed that the complainant is suffering from kerato conjunctivitis and it would take some time for complete healing but the affected eye of the complainant became bad to worse and the medicines being prescribed by the said doctor made the problem of the complt. day by day. Finding no other alternative, the son of the complainant brought her to O.P.No.2/Dr. D. B. Sarkar at his private hospital, Cooch Behar and he opined that the administering of steroid in the affected eye was completely wrong which was just sprinkling petrol into the fire instead of water to put out fire, The said doctor also opined that it would be quite impossible to save the eye of the complainant and he advised to stop the using of steroid as prescribed by O.P.No.1/doctor. Accordingly, he prescribed some medicine to the complainant to save the affected eye of the complainant and thereafter the complainant again visited O.P.o.2/doctor on 25/11/14 and 02/12/14 but the eye of the complainant could not be brought under control and he advised the complainant to consult with other eye specialist. (The photocopy of the prescription of Dr. D.B.Sarkar is Annexure-B).
Subsequently, the complainant went to Mechi Netralaya and Ophthalmic Research Centre Pvt. Ltd., Kakarvita, Nepal for examining her affected eye and the attending doctor opined that administration of steroid in the affected eye of the complainant damaged the eye. The doctor of Mechi Netralaya tried their level best to save the affected eye of the complainant but they could not do so as because the steroid completely damaged the right eye ball of the complainant. The right eye ball of the complainant gradually decomposed and to save the life of the complainant, the attending doctor of Mechi Netralaya was compelled to eviscerate the right eye of the complainant on 20/01/15. As a result, the complainant lost her right eye due to the wrong treatment of O.P.No.1 which is irreparable and uncondonable.
The complainant attended O.P.No.1/doctor with an utmost hope and aspiration to get healing by paying fees to the doctor but the complainant in lieu of healing lost her right eye and she became physically handicapped. Accordingly, the O.P.No.1/doctor made negligence and deficiency in service and he is liable to pay compensation to the complainant. (The photocopy of prescription and other treatment are mentioned in Annexure-C series).
The complainant had suffered mental pain and shock as well as harassment due to the negligent acts of O.P.No.1. The complainant incurred huge expenses for the treatment of her eye.
Hence, this case.
Both the O.Ps viz. O.P.No.1 and 2 appeared through their Ld. Agent and filed two separate W/V to contest the instant case denying the material allegations contained in the complaint.
The O.P.No.1 on denying the allegation averred that the case is not maintainable in its present form and also the case is barred by law and this Forum has no jurisdiction to entertain this complaint. It has been admitted by O.P. No.1 that the complainant was examined and treated by him at Swarnalata Medical Stores, at Kamakhyaguri. It is the case of the O.P.No.1 that upon clinical assessment and slit lamp examination the complainant was provisionally diagnosed as a case of keratoconjuctivitis, which is generally a viral infection. This O.P has further averred that a provisional diagnosis is one that can be determined initially without final analysis of test result and only upon clinical confirmation based upon medical tests, provisional diagnosis can be treated as definitive diagnosis. This O.P also averred that the complainant was prescribed flourometholone eye drops along with antibiotics in order to reduce inflammation and ameliorate for remedy of her sufferings. The O.P.No.1 also denied any adverse effect of flourometholone as the role of flourometholone is well documented in medical literature and supported by various studies wherein its use has been advised in treatment of subepithelial infiltrates and stromal or endothelial keratitis in both adenoviral and herpes simplex keratitis to prevent permanent visual disability.
This O.P also averred that flourometholone prescribed to the complainant is certainly not a strong steroid like prednisolone, dexamethazone, betamethazone and he also prescribed adequate medicines to moderate the effect of Flourometholone, so that no side effect is being cause. Flourometholone per-say cannot be a cause of keratitis and viral keratoconjunctivitis can lead to blindness especially in patients with compromised immunity, old age, malnourishment and other systematic disease like diabetics.
The O.P.No.1 filed some medical reports and publications which have been mentioned as Annexure- 1, 1(a), 1(b), 1(c), 1(d) and 1(e) respectively.
The O.P.No.1 further averred that after 09/11/14, the complainant never visited with him for any follow up after the initial consultation i.e. on 09/11/14, hence no further investigation or treatment was undertaken by this O.P and it is also not clear whether the complainant has exclusively used the medications as prescribed by him on 09/11/14 and admittedly the complainant had consulted other doctors immediately without the knowledge of O.P.No.1.
This O.P.No.1 has denied that the diagnosis was not confirmed through any investigation and scientific analysis of the corneal disease at any of the other Centres, she attended and she holds no documentary evidence of the diagnosis on the basis of which she was treated.
It is the further case of O.P.No.1 that the complainant instead of following up the treatment of O.P.No.1, consulted multiple doctors and clinic and as a result, she failed to receive the correct course of treatment. Had the complainant followed up the treatment, she could have availed the advantages of microbiological investigation and services of corneal specialist which was absolutely required in case the problems and complaints persisted even after applying the medications prescribed by O.P No.1 on 09/11/14.
This O.P has averred that it is necessary to ascertain whether the complainant was suffering from secondary bacterial and fungal infections particularly when it was known that the complainant has poultry firm at her home premises. It was also unfortunate that she had not undergone therapeutic keratoplasty if she had a perforated corneal complication but she has undergone evisceration in her eye at Mechi Netralaya which had perception of light and was not blind. If necessary, complainant could have availed the benefit of corneal transplantation and the prospects of visual recovery and rehabilitation would have been better.
The O.P No.1 further averred that Alipurduar Lions Eye Hospital and Alipurduar Lions Eye Bank is a pioneering centre in this region in corneal transplants. This hospital is also designated as referral centre by the Health and Family Welfare Department, Govt. of West Bengal for treatment of corneal diseases, corneal donation and transplantation and it shall transpire from the medical records of Mechi Netralaya that the problems of the complainant were limited to cornea and the inner portion of eye ball was totally normal. Hence therapeutic corneal grafting would have been the appropriate course of treatment, rather than evisceration of eye which appears to be a wrong course of treatment.
The further case of O.P.No.1 is that the O.P No.1 could not help the complainant because the complainant never attended for follow up either at Kamakhyaguri or Alipurduar and on referral by any other Eye Surgeon but she attended Mechi Netralaya in Nepal which is not recognized as a tertiary centre for ophthalmic disease in India nor is registered as per Indian Norms of Clinical Establishment. Further the complainant should have ideally attended any Regional Institutes of Ophthalmology or Centers Empanelled by the CGHS or WBHS Department. So, it is evident that the complainant was very negligent in providing quality treatment to an elderly patient and it is sad that the complainant preferred to eviscerate her eye at Mechi Netralaya after a span of two months, which implies that initial care was ignored due to which the condition aggravated.
According to O.P.No.1, there is no negligence or deficiency in service on the part of him and as such, the complainant is not entitled to get any relief or compensation as prayed for and the case is liable to be dismissed with exemplary costs.
The case of the Pro- O.P i.e. O.P No.2 that the case is not maintainable and the case is barred by law and this Forum has no jurisdiction to entertain this complaint.
This O.P No.2 has also admitted that the complainant being a female patient was examined and treated at Swarnalata Medical Stores at Kamakhyaguri by O.P.No.1. The treatment of the complainant was rendered by the O.P No.1 and as such, this O.P.No.2 has nothing to submit in this regard save and except the fact that Fluromtholone is a weak steroid and that the O.P.No.1 had also prescribed adequate medications to protect the complainant from any side effects as it appears from the prescription dated 09/11/14.
The O.P No.2 has further averred that he did not opine anything regarding the diagnosis or treatment rendered by O.P No.1 and the medicines as prescribed by the O.P No.1 was revised on considering the infection appeared to be a fungal one and there was diminution of vision. The complainant went to Mechi Netralaya at her own without any advice of this O.P. The problems of the complainant were limited to cornea and the inner portion of the eye which appears to be a wrong course of treatment.
The O.P.No.2 denied the other allegation as lavelled by the complainant against him. The complainant is not entitled to get any relief against him and the instant complaint is liable to be dismissed with exemplary costs.
The complainant and O.P.No.1 and 2 file evidence on affidavit which appears to be the reiterated version of complaint as well as W/V. The complainant and O.P No.1 and 2 have also filed written argument in support of their respective cases.
The complainant has filed some documents in respect of her case which mentioned in Annexure- A, B and C (Series).
On the contrary, the O.P.No.1 has filed some documents which mentioned in Annexure- 1, 1(a), 1(b), 1(c), 1(d) and 1(e) respectively
Heard argument of Ld. Agent of complainant and Ld. Agent of the O.Ps.
In this context, the following points were necessarily come up for consideration to reach a just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s.2 (1)(d)(ii) of Consumer Protection Act ?
- Has this Forum jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
Point No.1 and 2:-
It appears from the complaint that admittedly the complainant had been to the Chamber of O.P.No.1/doctor at M/S. Swarnalata Medical Stores, Kamakhyaguri on 09/11/14 as the complainant felt irritation and swelling of her right eye. The said Doctor i.e. O.P.No.1 examined her and after examination, he prescribed two eye drops and one ointment and advised her to apply the said medicine. The Photo-copy of prescription of O.P No.1/ doctor mentioned as Annexure-A. The Chamber of O.P.No.1 is at Kamakhyaguri which is within the jurisdiction of this District Forum.
The total claim of this case is less than the pecuniary limit of this District Forum.
Therefore, having heard the Ld. Agents of both sides and on considering the materials on record , we are in view that the complainant is a consumer u/s. 2(1((d)(ii) of C.P.Act,1986 and this Forum has sufficient territorial and pecuniary jurisdiction to entertain the case.
Thus, the points are decided in favour of the complainant.
Point No.3 and 4 :-
Both the points are taken up together for the sake convenience and brevity.
The victim herself has filed this case on the allegation of medical negligence on the part of O.P No.1/Dr. A. Sen Sharma.
Both the parties have tendered evidence on affidavit in support of their respective cases.
We shall consider the case on the basis of materials on record, whether the O.P No.1/Doctor A. Sen Sharma was deficient in Medical negligence.
At the very outset, it appears to us admittedly O.P.No.1 prescribed two eye drop, out of which one is “Flarex EID” and one ointment while complainant attended the chamber of O.P No.1 at Kamakhyaguri on 09/11/14
It is the argument of complainant that on 08/11/14 she felt pain and irritation in her right eye and seeing the sign board in Medical Shop, Kamakhyaguri M/S. Swarnalata Medical Stores, Haribari, Kamakhyaguri, she attended the chamber of O.P.No.1 which is 28 K.M away from Alipurduar, It was displayed in the sign board that O.P.No.1 is a consultant Eye Surgeon and Specialist in various field of eye treatment. The Photocopy of Annexure-A supports the treatment of complainant i,e prescription issued by O.P.lNo.1/Dr. Angshuman Sen Sharma.
The complainant has averred that after applying the said drug the condition of the affected eye of complainant became detoriated bad to worse and her vision became poor. The complainant reported it to the said doctor but doctor advised to continue the drug and he disclosed that she was attacked by a disease of Kerato conjunctivitis and it would take time for healing. Finding no other alternative, the son of complainant took the complainant to the hospital of O.P.No.2/Dr. D.B.Sarker, Cooch Behar and the said doctor told the complainant that administering of “Steroid” in affected eye was completely wrong. Just like sprinkle petrol into the fire instead of water to put out fire. O.P.No.2 opined that the complainant’s eye was heavily damaged due to administering of Steroid. O.P.No.2/Dr. D. B. Sarker advised to stop the medicine which prescribed by O.P.No.1. O.P.No.2 prescribed another medicine to save the eye of the complainant on 18/11/14.
If we go through the prescription of O.P.No.2 (Annexure-B), it would show that the said doctor prescribed another medicine and he diagnosed “Steroid exposed elsewhere”.
Fact remains, that the complainant thereafter attended the Chamber of O.P.No.2 on 25/11/14 and on 02/12/14 and subsequently the said doctor advised the complainant to consult with other specialist and accordingly, thereafter the complainant took the treatment at Mechi Netralaya and Ophthalmic Research Centre, Kakarvita, Nepal for better treatment. On examination of the eye of the complainant the said Mechi Netralaya after conducting some medical test on 12/12/14, 19/12/14, 04/01/15 and 16/01/15 decided that eviscerate of the eye of the complainant is absolutely necessary to save her life. The said Eye Hospital could not save the affect eye as the same was completely damage due to application of steroid. The eviscerated was done on 20/01/15 at Mechi Netyralaya. Thereafter, the complainant has lost her right eye and became handicapped permanently. The documents of Mechi Hospital has been mentioned in Annexure-C series including case summary of complainant wherein it appears that complainant was diagnosed as Hyperopic corneal ulcer in her right eye and advised to medication as she developed desmetocele and subsequently the complainant was advised prosthetic shell in her right eye.
On the other hand, the O.P.No.1 admitted that he prescribed the eye drop Fluoronetholone as the eye was inflamated and complained of pain as well as demunition of vision and foreign body sensation and in order to reduce her inflammation and ameliorate her sufferings. According to O.P.No.1 the said eye drop has no adverse affect with the other medicine i.e antibiotic as prescribed by him.
According to O.P.No.1 the said eye drop certainly not a strong steroid like other steroid. To prevent the said affected eye this eye drop i.e steroid was prescribed. Viral keratoconjunctivitis can lead to blindness especially in patients with compromised immunity, old age, malnourishment and other systematic diseases like diabetics.
The said O.P No.1 has filed some medical journal report in this field being Annexure-1, 1/a, 1/b, 1/c, 1/d and 1(e).
The O.P.No.1 has alleged that the complainant consulted multiple doctors and clinic but she could not avail any microbiological investigation to follow up her treatment or to consult any corneal specialist. The O.P No.1 averred it may be that she was suffering from secondary bacterial and fungal infections when the complainant has a poultry firm at her home premises. The evisceration of complainant which was done in this case led perception of light and was not blind. If necessity arises the complainant could have availed the benefit of corneal transplantation. Alipurduar Lions Eye Hospital and Alipurduar Lions Eye Bank is a pioneering centre in this region in corneal transplants.
According to O.P.No.1, the complainant’s problem was normal. Therapeutic corneal grafting could have been appropriate course of treatment. The evisceration of eye of complainant is completely a wrong treatment. According to O.P.No.1/Doctor, the Mechi Netralaya is not a recognized ophthalmic centre in India or not registered according to the Norms of Clinical Establishment. The complainant should have attended any CGHS or WBHS, but the complainant preferred to eviscerate her eye at Mechi Netralaya.
It has been alleged by O.P that the complainant fails to prove this case because there is no document to show that the medicine are actually purchased by her and no sample was tested in this case.
According to O.P.No.1 the complainant ignored to take initial care. The complainant never turned up to O.P.No.1 after 09/11/14. The O.P’s version is that the complainant has filed this case only to harass and maline the reputation of O.P.No.1/doctor and to exact compensation and to crash mental agony. AccordingtoO.P.No.1, there is no negligence or deficiency in service in this matter.
Both the parties have cited some rulings of Hon’ble Apex Court.
The O.P.No.1/Doctor cited the rulings viz. Supreme to-day 2016(2) CPR(NC) 2, Supreme to-day 2003(2) CPJ (NC) 90 and Supreme to-day 2003(1) CPJ (NC) 248 in support of their case.
On the contrary the complainant has cited some rulings viz. 1998 (Law Suit) S.C 353, 2004 (Law Suit) S.C 1233, (2010) 3 WBLR (SC) 470 and (2010) 3 WBLR (NC) 544.
Perused the said rulings and it appears from both parties ruling that the facts of this case are not fitted with the facts of the above case laws.
Hon’ble Apex Court has been pleased to observe that burden of proof lies who challenged the facts and there is no need of expert opinion.
We have already observed that admittedly one eye drop viz “Flarex EID” was prescribed by O.P No.1/Doctor to the complainant which admittedly Fluronetholone Acetate. Fluronetholone belongs to a class of medicines known as “Steroids’ or “corticosteroids”. Whether it may be weak or strong. According to O.P.No.1, the complainant was suffering from Kerato conjunctivitis. Conjunctivitis is an inflammation of cornea and conjunctiva. There are several potential causes of the inflammation. Conjunctivitis is usually a minor eye infection, sometimes it can develop into more serious problem. A viral or bacterial infection causes conjunctivitis. When steroid was used at the first instance to the patient, Doctor must be cautious to use the corticosteroid and careful in his duty to consider the risk involved therein. Though steroid was used in this case but there is no reference in O.P.No.1 ‘s prescription (Annexure-A) that the medicine was prescribed with due care and caution. There is no caution to the complainant about the use of steroid in her eye. No medical test was prescribed in that prescription by O.P.No.1 to follow up the treatment subsequently. The complainant was not directed by O.P No.1 in any manner to follow up her treatment and possible development after taking the medicine prescribed by him.
Only the averment of O.P No.1 is not suffice to say that the complainant never attended before him subsequently or the complainant was attacked in her eye as the complainant has poultry firm in her house.
We are unable to give any stress that the sample is required to be tested or the complainant is bound to produce the receipt of purchase of medicines. Mere such allegation of O.P. No.1 is not sufficient to take an adverse view against the case of complainant.
On the contrary, an adverse presumption may be drawn that the medicine which prescribed by O.P.No.1 was wrong because the O.P.No. 2/Dr. had altered it when she examined the complainant and issued a prescription (Annexure-B) wherein it is mentioned that steroid exposed but he diagnosed as corneal ulcer.
In our view if a patient is being treated with steroid Doctor must be asked to take care against the risk of pressure and sugar label in the blood and the probable consequences thereof. If there is a chance of drastic fall of the patient it is to be informed to the patient and his relatives who can take a decision of their own. Disclosure in cases like this seems to be a must. The patients are ignorent about the diseases or side or adverse effect of a medicine. Ordinarily, the patients are to be informed about the admitted risk ,if any. If some medicine has some adverse effect or some reaction is anticipated, the patient should be informed there about. The use of steroid must be avoided by ophthalmologist for undioagonised irritable red eyes because steroid aggravates the disease of the cornea. Doctor’s duty of reasonable care involves giving the patient a description of his condition and advice as to the appropriate courses of treatment including the risk involved.
Therefore, having heard the Ld Agents of both sides and on perusing the materials on record, it is, therefore, clear that there was negligence on the part of Doctor/O.P.No.1 and in consequence thereof, the complainant suffered damage on her right eye. The O.P.No.1 cannot deny his deficiency in service and negligence. We are constrained to hold that an amount of Rs.1,00,000/- (one lack) is to be allowed as compensation to the complainant and an amount of Rs.10,000/- be allowed for treatment of the complainant and an amount of Rs.5000/- be allowed to the complainant as costs .
Thus these points are decided in favour of the complainant. In the result, the case succeeds.
All the points are disposed of.
Hence, it is,
ORDERED
That the C.C No.03 of 2016 be and the same is allowed in part on contest against the O.P. No. 1 with cost of Rs.5000/- which is to be paid by O.P No 1 to the complainant and it is also allowed on contest against O.P. No. 2 without cost.
The Complainant do get an award of Rs. 1, 00,000/-(One Lack) as compensation which is to be paid by O.P. No 1 /Dr. A. Sen. Sharma to the complainant.
The Complainant do get an award of Rs. 10,000/- (Ten Thousands) towards medical treatment, which is to be paid by O.P. No 1 to the complainant.
The O.P. No. 1 is directed to pay the aforesaid amount of award to the complainant within 45 days i.d. the same would be paid along with interest @ 10% per annum w.e.f. the filling of the case till its full and final payment.
If the said O.P. disobeys the present Forum’s order in that case the O.P. shall have to pay the penalty of Rs. 100/- for each days delay which shall be deposited to the State Consumer Welfare Fund. West Bengal.
Let a plain copy of this Final Order be supplied to the concerned parties by hand/be sent under registered post with A/D forthwith for information and necessary action.
Dictated & Corrected by me.
