Date of Filing: 13.01.2015 Date of Final Order: 08.02.2016
The complainant Dinesh Ch. Barman, has filed the present case U/S 12 of the Consumer Protection Act, 1986 against the O.Ps, Dr. D.B. Sarkar, (Eye specialist & Surgeon) and Cooch Behar Eye Care & Research Centre Pvt. Ltd., praying for issuing a direction upon the O.Ps to pay the claim amount Rs.8,45,000/- in total to the Complainant and other relief(s) as the Forum may deem feet and proper.
The gist of the complaint as can be gathered from the case record is that on 30/07/2012 the Complainant consulted with the O.P. No.1, Dr. D.B. Sarkar with the problem of distance vision in his right eye had diminished and the O.P. No.1 initially examined the Complainant and detected that practically the Complainant undergo one eyed and RT eye vision 6/36 (P) and also advised for PC/IOL RE (i.e. Intraocular lens) with this assurance that after IOL operation the Complainant would get back visual activity in his right eye. On 08/09/2012 after doing some pathological tests (FFA, OCT), the Complainant got admitted to the Cooch Behar Eye Care & Research Centre Pvt. Ltd., i.e. the O.P. No.2 for cataract surgery with IOL by the O.P. No.1. After the said surgery, Dr. Sarkar informed the Complainant’s family members that the operation was successful and discharged him from the O.P. No.2 nursing home on the same day and also prescribe some medicines for post operational healing and the Complainant had paid to the O.Ps a package fee of Rs.35,000/- which includes the cost of the surgery, post-operative care as also expenditure on medicines but the O.Ps did not issued money receipt of the said payment and discharge certificate of the said surgery to the Complainant.
By taking and using such medicines the Complainant did not get experienced the comfort of cure i.e. he had no vision in his right eye. Therefore, the Complainant reported this aspect to Dr. Sarkar on 29/09/2012 & 01/12/2012, and he further examined the Complainant and prescribed some medicines with this assurance that he will be perfectly alright within six month but his condition did not improve. After that the Complainant further visited to the O.P. No.1 on 20/04/2013 for getting relief from vision loss and pain of his right eye but the O.P. No.1 gave written advice to the Complainant which itself depicted that “referred to hire centre for second opinion in lieu of post operative care.
Afterwards the Complainant himself and his family members finding no other alternative for reviving from the said problem on 21/09/2013 consulted with Dr. Asit Kr. Ghosh, MBBS, (CAL) D.O, (CAL) LPGME & R at Cooch Behar, who examined the Complainant and opinion that the Complainant had no vision in his right eye.
From that it is crystal clear that due to lack of ordinary care and skill at the time of RT cataract surgery with IOL, in that event the indispensable part of the body like as right eye of the Complainant vision loss and the Complainant would be suffered various disorder or problem in his life in future. The O.P No.1 & 2 did not maintain professional ethics, which tantamounts to medical negligence and deficiency in service. Due to such of medical negligence and deficiency in service on the part of the O.P. No.1 & 2, the Complainant suffer irreparable loss, mental pain and agony and also suffered from huge monitor.
Hence, the Complainant filed the instant case No. CC/4/2015 with enclosed some original/Xerox copy of documents before this Forum for redress of the dispute and prayed for direction to the O.Ps to pay (1) Rs.3,00,000/- for liable of medical negligence and deficiency in service, (2) Rs.35,000/- for Nursing Home Charges at Cooch Behar, (3) Rs.5,00,000/- for damage of right eye along with mental pain & agony, harassment and (4) Rs.10,000/- towards litigation cost, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No.1, Dr. D.B. Sarkar, (Eye specialist & Surgeon) and the O.P. No.2, Cooch Behar Eye Care & Research Centre Pvt. Ltd., have contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.P. No.1 & 2 is that on 30/07/2012 the Complainant attended the O.P. No.2 nursing home with the complaint of vision loss. On examination of both the eyes it was found that right eye vision poor and left eye blind VA<RE-6/36(P)/LE (NOPL) no vision. The Complainant was suffered with “Pale Optic Dis” (dried optic nerve i.e. nerve for vision) and also there was Vitreous Membrance (membrance in the jelly of eye ball and retina). After examination, the patient was referred to Vitreo retinal Surgeon Dr. Somnath Chakraborty who after examination of the patient found him blind by left eye and right eye also on the verge of blindness due to Vitreo-macular traction and neovascularisation and considering the condition of the patient, Angiography and 3-D OCT has been advised. After doing the said examination it was found that right eye of the Complainant was in a critical stage, bleeding may occur at any time from his eye for which immediate Anti VEGF (Vascular Endothelial Growth Factor) injection is required to be applied to stop bleeding and accordingly the said injection has been applied and also advised for Vitreo retinal surgery within a week is required just to maintain his very poor vision. On 01/09/2012 the O.P. No.1 has applied injection Avastin (Intravitrea Anti VEGF) and on 08/09/2012 the said operation was successfully done by the O.P. No.1. After such operation Silicon Oil injection applied for settlement of tractional retinal detachment (TRD). On 29/09/2012 the O.P. No.1 examined the patient and found that Macular TRD has been settled partially and IOL was in a correct position. The O.P. No.1 also found by 3-D OCT that condition of eye was satisfactory, IOL was in correct position and accordingly some medicines were prescribed by the doctor with mentioning that PPV stable, eye pressure was normal and macular TRD was better.
It is the case of the O.P. No.1 that the O.P. No.1 explained the patient and his relatives about the condition of his eye and the procedural treatment which keep the low vision but when they became annoyed about the condition of the patient and more worried about vision, the O.P. No.1 referred the patient to higher authority for second opinion for their full satisfaction about the treatment made. But the Complainant instead to approach any higher authority who is specialized in Vitreo-retinal surgeon, visited consultant eye surgeon who is not an expert in the field of Vitreo-retinal disease.
The O.P. No.1 further stated in his written version that he never assured to the Complainant about return of visual activity in the right eye. Actually the said operation was done just to keep the low vision which the Complainant is getting from his right eye intact as condition of his eyes specially his right eye is going to be blind.
By putting all this, the O.P. No.1 stated in his written version that there is no deficiency in service and medical negligence on the part of the O.P. No.1. and prayed for dismissal of the instant case with cost.
In the light of the contention of the both parties the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, perused the entire documents in the record also heard both sides at a length.
Point No.1.
Evidently the eye surgery of the Complainant Sri Dinesh Ch. Barman was done by the O.P. No.1, Dr. D.B. Sarkar, (Eye specialist & Surgeon) and the O.P. No.2, Cooch Behar Eye Care & Research Centre Pvt. Ltd. on receiving payment.
So, relation between the Complainant and the O.Ps has been established and it can be safely concluded that the Complainant is consumer under the O.Ps, U/S 2(1)(d)(ii) of the C.P. Act, 1986.
Point No.2.
Chamber of the O.P. No.1, Dr. D.B. Sarkar, and the O.P. No.2, Cooch Behar Eye Care & Research Centre Pvt. Ltd. are situated within the jurisdiction of this Forum and total valuation of the case is Rs.8,45,000/- which is far below than maximum limit of Rs.20,00,000/-.
So, this Forum has territorial and pecuniary jurisdiction to try this case.
Point No.3 & 4.
Both points are taken up together for convenience of discussion as they are related to each other.
The Complainant, Dinesh Chandra Barman in his Complaint and evidence stated that on 30/07/2012 the Complainant consulted with the O.P. No.1, Dr. D.B. Sarkar with the problem of distance vision in his right eye had diminished and the O.P. No.1 initially examined the Complainant and detected that practically the Complainant undergo one eyed and RT eye vision 6/36 (P) and also advised for PC/IOL RE (i.e. Intraocular lens) with assurance that after IOL operation the Complainant would get back visual activity in his right eye.
Annexure “A” and “A1” of the complaint are prescriptions dated 30/07/2012, 11/08/2012 & 01/09/2015 issued by O.P. No.1, Dr. D.B. Sarkar to the Complainant, Sri Barman.
It appears that it was opined that the Complainant was one eyed and RT eye vision 6/36(P) and he was advised for IOL operation.
He further stated that on 08/09/2012 after doing some pathological tests (FFA, OCT), the Complainant got admitted to the Cooch Behar Eye Care & Research Centre Pvt. Ltd., i.e. the O.P. No.2 for cataract surgery with IOL by the O.P. No.1. After the said surgery, Dr. Sarkar informed the Complainant’s family members that the operation was successful and discharged him from the O.P. No.2 nursing home on the same day and also prescribe some medicines for post operational healing.
He further stated that he paid Rs.35,000/- as package fee but the O.Ps did not issued any money receipt and discharge certificate.
Annexure “B” is the prescription dated 08/09/2012 issued by the O.P. No.1 to the Complainant, which reveals that P.C/IOL RE operation of the Complainant was done on 08/09/2012.
The Complainant, Sri Barman in his Complaint and evidence further stated that by taking and using such medicines the Complainant did not get experienced the comfort of cure i.e. he had no vision in his right eye. Therefore, the Complainant reported this aspect to Dr. Sarkar on 29/09/2012 & 01/12/2012, and he further examined the Complainant and prescribed some medicines with this assurance that he will be perfectly alright within six month but his condition did not improve.
Annexure “C” and “C1” are prescriptions of the Complainant dated 29/09/2012 and 01/12/2012 which reveal that on that dates, the Complainant attended O.P. No.1, Dr. Sarkar and some medicines have been prescribed to him.
The Complainant further stated that thereafter the Complainant further visited to the O.P. No.1 on 20/04/2013 for getting relief from vision loss and pain of his right eye but the O.P. No.1 gave written advice to the Complainant which itself depicted that “referred to hire centre for second opinion in lieu of post operative care.
Annexure “D” i.e. prescription dated 20/04/2013 shows that Dr. Sarkar opined that progress not happy and referred to Higher Centre for second opinion.
It is the further case of the Complainant that afterwards, the Complainant himself and his family members finding no other alternative for reviving from the said problem on 21/09/2013 consulted with Dr. Asit Kr. Ghosh, MBBS, (CAL) D.O, (CAL) LPGME & R at Cooch Behar, who examined the Complainant and opinion that the Complainant had no vision in his right eye.
Annexure “D” of the Complainant shows that Dr. Ashit Kr. Ghosh, M.S. (Ophthalmic Surgery) examined the Complainant on 21/09/2013 and opined that prognosis regarding vision poor.
It is the specific case of the Complainant that the O.Ps took no pre/post operative care regarding operation of the Complainant and due to negligent act of the O.Ps, the Complainant has lost vision of his eye.
Regarding his treatment, the Complainant has filed some prescriptions (Annexure “A” to “D”). According to him, the O.Ps did not issue any Discharge Certificate or medical papers.
On the other hand, it is the case of the O.Ps that every care and precautions were taken by them during operation and there was no negligence on the part of the O.Ps. But the O.Ps have failed to submit any scrap of paper regarding treatment of the Complainant.
During hearing of argument Ld. Agent/Adv. of the Complainant submitted some literature regarding eye treatment from internet.
The said literature shows that 6/36 represents low vision – an individual with equal or less than 6/36 vision.
Less than 6/60 vision is classified for legal blindness.
According to the said literature Pars Plana vitrectomy (PPV) is a surgical procedure that involves removal of vitreous gel from the eye.
Notes on Cataract Surgery Wikipedia the Free Encyclopedia Intraocular lense implication : After removal of the cataract an intraocular lense (IOL) is usually implanted into the eye.
During hearing of argument Ld. Agent/Adv. of the Complainant submitted that in the present case no pre-operative tests were done by the O.P. No.1, Dr. Sarkar, which must be treated as deficiency in service.
In this context he cited a ruling reported in 2012 (2) CPR 52 (NC) where Hon’ble N.C pleased to hold that non-conducting of pre-operative test which are necessary to decide fitness of the patient for undergoing major surgery is a glaring act of deficiency in service.
During hearing of argument Ld. Agent/Adv. of the Complainant further submitted that non-submission of any medical papers by the O.Ps seems that certainly there was negligence on the part of them.
In support of his contention he cited a ruling reported in 2014 CJ 157 (NC) cited by the Complainant in respect of a case of medical negligence regarding death of a child, Hon’ble National Commission pleased to hold that from the observation of the State Commission it is evident that the Petitioner/Hospital failed to produce the treatment chart of the deceased in their evidence. In absence of the treatment record, which could have thrown light an issue of medical negligence, we are of the view the Foras below have rightly concluded that the Petitioners were negligent in the treatment of the deceased child.
In the present case the O.Ps relied upon the opinion of Dr. Manik Nagpal, M.B.B.S, M.S (Ophthalmology) FRCS (Edinburg, U.K) specialty Ophthalmology, super speciality Retina and Vitreous.
It appears that in his report Dr. Nagpal opined that about the case I would have done exactly the same as you decided.
The O.Ps submitted Biodata and details about qualification and experience of Dr. Nagpal.
But there is nothing to show that actually which papers were sent to Dr. Nagpal and he passed his opinion on which basis.
Dr. Nagpal did not submit his evidence/report by showing affidavit.
We further find that said opinion is nothing but personal correspondence between two eye specialists.
So, we think no reliance can be placed upon the said report.
Evidently, in the present case the Complainant has not submitted any opinion of expert.
During hearing, Ld. Agent/Adv. of the O.Ps submitted that it is mendatory obligation of the Complainant to obtain expert opinion.
But in his reply Ld. Agent/Adv. of the Complainant submitted a copy of the judgement passed in Civil Appeal No.2641 of 2010 by Hon’ble Supreme Court, where in a case of medical negligence, Hon’ble Appex Court pleased to hold that in most of the cases the question whether a medical petitioner or the hospital is negligent or not is a mixed question of fact and Law and the For a is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other. For the reasons discussed above, this Court holds that it is not bound by the general direction given in Paragraph 106 in D’souza (supra). This Court further holds that in the facts and circumstances of the case expert evidence is not required and District Forum rightly did not ask the appellant to adduce expert evidence. Both State Commission and the National Commission fell into an error by opining to the contrary.
In view of the decision of Hon’ble Apex Court, we think no expert opinion is required in this case.
It is the case of the O.Ps that no reliance can be placed upon opinion of Dr. Asit Kr. Ghosh, i.e. Prescription dated 21/09/2013, who is not a specialist regarding disease of the Retina and Vitreous but he has only qualification regarding ophthalmic surgery.
But we find from the certificate regarding qualification of the O.P. No.1, Dr. Sarkar, who rendered the operation has also no qualification regarding disease of the Retina and Vitreous.
We find that one Dr. Somnath Chakraborty of said hospital has qualification regarding disease of the Retina and Vitreous. But he did not render the operation.
In the present case during argument, Ld. Agent/Adv. of the O.Ps submitted some Literature regarding clinical Ophthalmology, Ratinopathy, Tractional Retinal Detactiment from internet.
We have already stated that the O.Ps have not submitted any scrap of paper regarding operation/treatment of the patient and practically there is no evidence on the point of operation and post operation treatment.
So, discussion of medical text regarding eye operation is immaterial in this case.
During hearing of argument, Ld. Agent/Adv. of the O.Ps submitted rulings reported in (1) 2007 (2) CPR 451 (NC), (2) 2007 (1) CPR 258 (NC), (3) 2007 CPJ 146 and (4) 2006 (3) CPR 328 (NC)/2007 CPJ 338 (NC).
We find in the ruling reported in 2007 (2) CPR 451 (NC) in case of Glaucama in eyes after surgery, the patient lost eye sight of both eyes. Evidence showed that doctors were competent and operation performed according to accepted procedure Hon’ble National Commission pleased to hold that District For a and Hon’ble State Commission are rightly dismissed the case.
In another ruling reported 2007 (1) CPR 258 (NC) in a case after four eye operations, the Complainant became partially blind. Hon’ble National Commission pleased to observe that the O.P was highly qualified surgeon in eye and records from the hospital did not show any negligence on the part of the O.P in performing surgery, negligence or deficiency in service could not be established.
In ruling reported in 2006 (3) CPR 328 (NC) in a case Cataract operation of right eye was done but a small posterior capsular teen developed. Plana victomy was done. The Complainant required his vision but thereafter Retinal Detactiment diagnosed. Operation was done but no development. Expert opinion that proper treatment was done and no negligence. Hon’ble National Commission pleased to hold that Consumer Case was rightly dismissed by Hon’ble State Commission.
But we find that, Ld. Agent/Adv. of the O.Ps just submitted that Head Note of the said rulings without submitting the original rulings.
So, we are unable to examine whether the facts of the said cases are relevant with the present case or not.
During hearing of argument, Ld. Agent/Adv. of the O.Ps relied upon the second opinion of Dr. Ghosh, who opined that “Prognosis regarding vision poor” (though it also submitted that Dr. Ghosh has no qualification regarding disease of the Retina and Vitreous and he cannot passed any opinion in that subject) and submitted opinion Dr. Ghosh shows that the Complainant is not fully blind but his vision is poor.
But we find that in his prescription dated 20/04/2013 (Annexure - D) Dr. Sarkar himself opined that progress not happy and referred to higher centre for second opinion.
So, it is clear from the above opinion of the O.P. No.1, Dr. Sarkar that progress regarding vision of the Complainant was not happy and he seeked for second opinion.
If that be so the O.P. no.1, Dr. Sarkar cannot claimed that till then the patient/Complainant had some vision.
So, it is clear from our above made discussion that it is apparent that the Complainant has lost his vision due to operation render by the O.P. No.1, Dr. Sarkar.
During his argument, Ld. Agent/Adv. of the O.P submitted that in case of operation of tractional Retinal Detachment chance of recovery is very memote and inspite of due care in operation by the O.Ps, the Complainant has not got fruitful result.
In support of his contention he submitted some internet information regarding Tractional Retinal Detachment, where it is reported that the anatomical success rates of PVR are about 75% – 90%. However, the functional results are not that good since only about 40% – 50% of eyes attain 20/400 or better visual acuity.
On the other hand in this respect Ld. Agent/Adv. of the Complainant submitted some internet copy regarding Pars Plana Vitrectomy, where it is noted that the lack of vitreous does not affect the functioning of eye. Rate of recovery depends on many factors, however the pre-operative condition for which the vitrectomy is performed is most important fact determining the rate of recovery as well as the final outcome. Only your eye surgeon can advise you as to what to expect.
It is the case of the O.Ps that vitro Retinal surgery was required to maintain very poor vision.
But the Complainant by filing affidavit claimed that he was assured by the O.P. No.1, Dr. Sarkar that after operation he would get back visual activity in his right eye.
In the present case, operation was done by the O.P. No.1, Dr. Sarkar, who rendered Retina and Vitreous operation to the patient/Complainant. But he has qualification of Master surgery regarding Ophthalmology without having any qualification regarding disease of Retina and Vitreous.
According to internet note submitted by the Ld. Agent/Adv. of the Complainant Vitro Retinal (Retina) specialist are Ophthalmologists specializing in the treatment of all retina disease including age related macular degeneration retinal detachment, macular holes and diabetic retinopathy following medical school, these physicians complete a three residency followed by a two years fellowship in Vitreo Retinal disease and surgery.
In the last part of his argument, Ld. Agent/Adv. of the Complainant submitted that the O.P. No.1, Dr. Sarkar without any specialization in disease of Retina and Vitreous has rendered such operation but he cannot treat such patient. In support of his contention he cited ruling reported in 2013 CJ 397 (NC), where treatment for kidney problem of a patient was done by doctor having qualification M.D in medicine but did not have any Post-graduate degree or Diploma in Nephrology, ultimately the patient had died.
Hon’ble National Commission pleased to hold that the doctor/Respondent No.1 was not qualified as Nephrologist to deal with the case which itself made him guilty of a medical negligence.
Considering over all matter into consideration and material on record and relying upon decision cited about, we are constrained to hold that both the O.P. No.1, Dr. Sarkar and the O.P. No.2, Eye Hospital are guilty for medical negligence and deficiency in service and they are liable to pay Rs.4,00,000/- to the Complainant as compensation.
Thus, both points are decided in favour of the Complainant.
Accordingly, the case succeeds in part.
ORDER
Hence, it is ordered that,
The present Case No. CC/4/2015 be and the same is allowed on contest but in part with costs of Rs.5,000/- against the O.P. No.1, Dr. D.B. Sarkar (Eye specialist & Surgeon) and the O.P. No.2, Cooch Behar Eye Care & Research Centre Pvt. Ltd.
Both the O.P. Nos.1 & 2 are directed to pay Rs.4,00,000/- jointly and/or severally as compensation for medical negligence, deficiency in service, mental pain & agony and harassment to the Complainant, Dinesh Ch. Barman. The ordered amount shall pay jointly and/or severally to the Complainant within 45 days failure of which the O.P. Nos.1 & 2 jointly and/or severally shall pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
Let plain copy of this Final Order be made available and be supplied free of cost, to the concerned party.
Dictated and corrected by me.
President President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member Member
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
