BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 15/11.
THIS THE 28th DAY OF NOVEMBER 2011.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- K. Ashanna S/o. Late Nagappa, aged about 62
years, Occ: Nil after the operation, R/o. H.No. 9-9-82, Maddipet, near Hanuman Temple, Raichur 584101.
//VERSUS//
OPPOSITE PARTY :- Dr. H. Siddesh Kumar S/o. Dr. Ramakrishna
aged about 40 years, Vasavi Nursing Home, Opp: Jain Mutt, Mahaveer Chowk, Raichur 584101.
CLAIM : For to direct him to repay an amount of Rs.
3,100/- towards eye operation charges paid by him, to pay an amount of Rs. 10,00,000/- (Rs. Ten Lakhs) towards compensation of loss of vision in his right eye due to negligent operation conducted by him to his right eye with other reliefs as deems fit to the circumstances of this case.
Date of institution :- 21-02-11.
Notice served :- 28-02-11.
Date of disposal :- 28-11-11.
Complainant represented by Sri. M.K. Daftary, Advocate.
Opposite represented by Sri. Sateesh.V. Advocate.
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by K. Ashanna against the opposite doctor U/sec. 12 of Consumer Protection Act for to direct him to repay an amount of Rs. 3,100/- towards eye operation charges paid by him, to pay an amount of Rs. 10,00,000/- (Rs. Ten Lakhs) towards compensation of loss of vision in his right eye due to negligent operation conducted by him to his right eye with other reliefs as deems fit to the circumstances of this case.
2. The brief facts of the complainant’s case are that, in the month of May-2008, he consulted opposite doctor for cataract operation to his right eye opposite doctor advised him to go for operation in his hospital, accordingly in the said month, on one day opposite conducted cataract operation his right eye and he was discharged with medical prescriptions on 30-05-08. Complainant started suffering from intolerable pricking sensation in the right eye, he consulted opposite doctor to checkup his right eye. Doctor opened the bandage and noticed that, operation conducted by him is failed. However, he prescribed some medicines and instructed him to approach after ten days. His suffering not improved in spite of new medicines taken as per the advise of opposite, thereafter, again he contacted opposite doctor on 11-06-08, but opposite doctor helplessly advised him to go to VIMS Hospital at Bellary, accordingly he visited VIMS hospital, Bellary, he took treatment but no improvement thereafter, he approached Super Specialty Hospital in Raichur, Hyderabad & Kurnool, but the vision in his right eye completely disappeared, now the right eye became useless. It was because of the negligent operation conducted by opposite without prior tests, without proper equipments and without knowledge to meet out any eventualities and complications if developed after operation and also refused to hand over the case papers. Hence there is deficiency in service on the part of opposite, accordingly, he prayed for to grant the reliefs as noted in the complaint.
3. The opposite doctor appeared in this case through his Advocate, filed his written version by denying all the allegations made by the complainant in parawise. It is contended that, case history papers were furnished to complainant on 11-06-08, opposite doctor admitted the operation conducted by him to the right eye of the complainant and on 11-06-08, he examined the complainant and noticed that IOL which was implanted was subluxiated. This has happened due to rubbing of his eye and it was due to his negligence. It happened not due to his negligence, such kind of problems developing in rare cases in which rubbing of eye took place, he has no such facility to refix the lanse. Accordingly, he advised the complainant to approach the higher hospital at Bellary, complainant took four days treatment in Bellary, wherein operation took place and explanted the IOL which was subluxiated, thereafter complainant approached different doctors, there was no deficiency in his service and complainant is not entitled for any of the reliefs and thereby, he prayed for to dismiss the complaint among other grounds.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, opposite doctor without conducting preliminary and para medical tests, negligently conducted cataract operation to his right eye which resulted into development of number of complications in his right eye, thereafter opposite referred him to take treatment in VIMS hospital, Bellary wherein once again operation conducted thereafter there was no improvement he approached Super Specialty Hospital at Raichur, Hyderabad & Kurnool but he lost complete vision in his right eye, he lost his vision in the right eye because of the negligence shown at the time of operation of his right eye by the opposite, thereafter opposite refused to furnish case history papers to him in spite of repeated demands and thereby opposite found guilty under deficiency in his service.?
2. Whether complainant is entitled for the reliefs as prayed in his complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In the affirmative
(2) As discussed in the body of the judgment and as stated in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 & 2 :-
6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, who is noted as PW-1. Documents Ex.P-1 to Ex.P-26 are marked. Interrogatories filed, opposite answered for those interrogatories. On the other hand, affidavit-evidence of opposite was filed, he was noted as RW-1. Documents Ex.R-1 is marked. Interrogatories filed and answered.
7. It is a case of medical negligence. Complainant filed one application before this Forum to refer the subject matter involved in this complaint to expert for opinion on 25-07-11. Thereafter on 16-08-11 the learned advocate for complainant requested us to dismiss the said application as not pressed. Hence the said application for referring the subject matter to one expert was dismissed as requested.
8. As per the principles of the ruling V. Kishan Rao V/s. Nikhil Super Specialty Hospital, reported in 2010 SAR (Civil) 550. The Hon’ble Apex Court laid down law that, In medical negligency cases, it is not mandatory on the part of the consumer forum to refer each and every case to expert’s to get opinion. Keeping in view of the law laid down by the Hon’ble Apex Court in the said ruling, we are of the clear view that, the present subject matter of the complaint is not involved that much of complicated issues, so that expert opinion shall be obtained to resolve the dispute on other hand, we are able to resolve the dispute in between the parties, without any expert’s opinion as the subject matter is not involved such complicated issues.
9. On perusal of the pleadings of the parties, their respective affidavit-evidences, documents and answers filed to interrogatories. It appears to us that, complainant made some of the following allegations in respect of the medical negligence against opposite in conducting cataract operation of his right eye. Hence, all these allegations requires our consideration to see as to whether complainant has discharged his burden in proving the alleged medical negligence said to have committed by the opposite.
10. The first allegation by the complainant against opposite doctor is that, he conducted cataract operation to his right eye without getting examination of preliminary tests whether he is fit to conduct the cataract operation to his right eye.
2) Whether, opposite took written consent in its real meaning from the opposite for the said operation.
3) Whether, opposite doctor shown his negligence in conducting cataract operation to his right eye, even though he was no facilities or knowledge to face untoward developments after operation and thereby his right eye developed pricking sensation and pain immediately due to failure of the operation, as such opposite doctor sent the complainant to get treated in VIMS Hospital at Raichur and accordingly complainant took treatment in VIMS Bellary Hospital at Racihur, Hyderabad & Kurnool. Even then, he lost his right eyesight.
4) Whether, opposite doctor not handed over the case history papers to the complainant, even after several requests and demands made by him and thereby this act is also a part of negligence by the medical profession.
11. These are the main allegations against the opposite doctor, to see as to whether, these allegations have been proved by the complainant, we have to appreciate the affidavit-evidences, documentary evidences and reply given by the opposite to the interrogatories to see as to whether complainant discharged his burden in proving the facts involved in first allegation as noted above. The relevant documents for the purpose of it are Ex.P-1 prescription slip dt. 27-05-08, Ex.P-2 discharge summary card dt. 28-05-08. Ex.P-3 letter dt. 11-06-08 and the document produced by the opposite doctor Ex.R-1 patient record pertaining to the complainant maintained by opposite.
12. By looking into all these documents together, it is very much clear that cataract operation conducted on the right eye of the complainant on 28-05-08 and he was discharged on same date. These facts are undisputed facts in between the parties.
13. Further, documents Ex.P-1 prescription and Ex.P-2 discharge summary discloses the eye drops prescribed for first (10) days and thereafter another eye drop for second (20) days. It is very much clear that, after (20) days as advised under Ex.P-2 complainant contacted opposite doctor with complaints of pain and itching sensation in his right eye. After checkup of his right eye opposite advised the complainant to approach doctor of VIMS Hospital at Bellary under Ex.P-3.
14. When such being the real facts of this case, how we have to accept that, complainant not approached the opposite well within time. He approached one day more or less after (20) days of the operation as advised under discharge summary at Ex.P-2. Hence this kind of blame given on the complainant is not accepted. Referring the complainant to approach doctor at VIMS Hospital at Bellary vide Ex.P-3 itself is very much clear that, there was some disorder in the operation and thereby it developed various complications.
15. We have gone through the Ex.P-1 & Ex.P-2 these two documents not at all discloses regarding the conducting of any kind of preliminary tests or investigations required to be conducted by the opposite on complainant prior to operation. Ex.R-1 gives the some clues with regard to investigation said to have done by him prior to operation. On perusal of Ex.R-1, opposite not conducted blood sugar test prior to operation. This cannot be denied by him as he himself kept blank in printed place in Ex.R-1. Further Ex.R-1 discloses that, the urine sugar of the complainant was ‘Nil’, that means to say that, opposite doctor conducted urine sugar test and noticed that it was Nil and there by he determined to conduct eye operation.
16. Now, we have to appreciate these facts as noted by the opposite himself in Ex.R-1. Admittedly now a days eye operation is a simplest one, but at the same time, it involves so many complications. In the instant case whether urine sugar rest is only sufficient to rule out excess of sugar in blood. Normally FBS counts 72110/mg/dl/, PBS will be 72140/mg/dl. This is the normal stage in which an individual is not suffering from sugar complaints, and he will not called as a diabetic patient. Urine sugar test is ancillary test to the blood sugar test FBS and PBS report, authenticated tests are FBS and PBS to determine whether particular patient is diabetic are not. In the instant case opposite was prepared to conduct important and delecate organ of human being, which is eye, without conducting blood sugar tests either FBS or PPBS and deciding to perform eye operation based on urine sugar test only is not a recognized procedure of medical science. Hence we are of the view that, this opposite doctor was shown his negligency in conducting cataract operation of right of the complainant without getting examination of blood sugar tests FBS or PBS of the complainant.
17. The second allegation against the opposite doctor is that, he was negligent in conducting cataract operation to his right eye thereafter it developed pricking sensation and pain, after operation. As we have already noted above, within a small period of first operation this opposite referred this complainant to VIMS Hospital to get higher treatment, medical records of the VIMS Hospital, Bellary shows another operation conducted on his right eye due to failure of the first operation.
18. The opposite doctor wants throw blame on the complainant by saying that, he might have rubbed his right eye therefore such complaints developed. Now, we have to see written version filed by the complainant with answers given by the interrogatories. It is a fact that, IOL implanted by the opposite doctor in the right eye of the complainant was subluxiated within few days, and it is very much clear from letter Ex.P-3 by referring this complainant to VIMS Hospital, Bellary that, this opposite has no facilities to refix IOL which was subluxiated, it appears from the entire facts and circumstances of this case that, simply this opposite doctor might have facilities to operate the eyes of the patient without minimum facilities to meet out any causalities arising out of that operation. Hence this fact itself sufficient for us to say that, he was negligent in his duties as a medical practitioner as required U/sec. 33 of Indian Medical Council Act.
19. Generally, now a days conducting B Scan test before conducting cataract operation is must. This opposite doctor might not having such facility or he not get tested it from other hospitals. Hence, as stated by their lordships of the Hon’ble National Commission in Dr. V.Pahwa V/s. Surendra Mohan Ghosh reported in 4 (2004) CPJ (1) N.C. the fact of this case is similar to the present case as B Scan Test is pre-requisite for eye operation. Similar incident was discussed by their lordships in a case reported in 3 (2011) CPJ 61 NC Dr. B.K. Pani @ Binay Kumar Pani V/s. Sundri Devi.
Revision Petition NO. 2069 of 2010 N.C. Apollo Hospitals V/s. Satyanarayana and another.
2) II 2010 ACC 658 (SC) A.U. Sukumaran V/s. N.S.D.Raju & another. Hence from all these counts, we have satisfied that, the complainant has discharged his burden of proving the medical negligence against opposite doctor.
20. Another allegation made against the opposite doctor is that, he not took written consent from the complainant before operation to his right eye. In this regard opposite has produced one document by denying the said allegations. According to the facts noted in Ex.R-1 complainant has given and signed to the consent. The written facts shows that, the complainant whole heartedly agreed to conduct the operation from opposite, now, we have to see as to whether the said consent was real consent of complainant for getting his right eye operated from the pleadings of the complainant and his affidavit-evidence which are all not discloses the fact that, he not given consent in its real meaning for getting operation of his eye by the opposite as per the document Ex.P-2. Hence, we have not accepted this allegation against opposite.
21. Another allegation made by the complainant against opposite is that, he has not hand over the entire history papers to him even after oral and written demands to support of this allegation, he filed affidavit-evidence and documents Ex.P-22 to Ex.P-25, which are his request letters by RPAD. It is not the case of opposite that, he replied suitably to all those request letter as he handed over the case history papers to him as contended before this forum. Ex.P-26 envelope clearly shows that, he not claimed his request letter of the complainant Ex.P-25. He also not produced such detail case history papers before this forum. By taking into consideration of this fact, we are of the clear view that, opposite shown his negligence in not furnishing case history papers to the complainant as demeaned by him. It is the patient’s right to get collect all the case papers from the doctor, but in this case opposite avoided to furnish all the case papers to him.
22. Apart from the above discussions, we have gone through the entire allegations made by the complainant defence by the opposite, documentary evidences referred above and interrogatories and answers we are of the clear view that, the doctrine of Res-Ipsa-Liquotar is applicable to the facts of this case, the initial burden has been proved by the complainant, no acceptable evidences or documents out coming from the side of the opposite. The maxim Res-Ipsa-Liquotor (things speak for itself or tells its own story) oftenly using in giving with the tort or negligence, the Hon’ble Supreme Court explained this doctrine and its applicability in medical negligence cases in
1) Sham Sunder V/s. State of Rajasthan 1973 ACJ 296 (SC)
2) State of Punjab V/s. Modern Cultivators AIR 1965 (SC) 17.
3) Syed Akbar V/s. State AIR 1979 SC 1848.
23. It is not a rule of law, it is merely rule of evidence it, it is not alter the general rule that, onus to prove negligence rests upon the claimanant. This doctrine comes into play in cases were “Res can speak for itself”. Once doctrine of Res Ipsa Liquotor is brought into play then, there is presumption that, event is caused by negligent on the part of defendant. In such cases, to rebut the presumption the defendant as to prove that, there is no negligent on his part.
24. The Hon’ble Supreme Court in Spring Meadows Hospital V/s. Harizol Ahluwalia reported in 1998 (4) SCC 39 in para-10 of its judgment it is observed as
“In cases of gross medical negligence the principles of Res
Ipsa Liquidator can be applied”.
By keeping in view of the principles noted above, their lordships, coupled with the principles of the doctrine, we are of the view that the entire act of opposite is very much clear and it itself speaks that, he was negligent in conducting eye operation of the complainant. Accordingly we are of the view that, the complainant has proved all the allegations made against opposite and there are no acceptable evidences from the side of the opposite to rebut presumption of the doctrine and thereby we answered Point No-1 in affirmative.
POINT NO.2:-
25. Admittedly the complainant has lost 100% vision in his right eye. This is direct result of negligence in pre-operative and post operative including the manner of operation conducted by the opposite on his right eye. It was due to non investigation of blood sugar of complainant prior to operation, and he was not well equipped with to meet out probable causality out of that operation. Keeping in view of the fact we have considered the request of complainant to award compensation of Rs. 10,00,000/- (Rs Ten Lakhs), we have no reasons to accept and to award this huge amount. However, he lost his right eye completely, his sufferings and expenses incurred by him in various hospitals, we are of the view that, it is just and proper to award a lumpsum amount of Rs. 3,00,000/- to the complainant from the opposite for his negligent, accordingly, complainant is entitled to recover an amount of Rs. 3,00,000/- from the opposite under this head.
26. Admittedly the complainant has made expenses by paying fee of Rs. 3,100/- from the opposite doctor at the time of operation, accordingly he is entitled to get total amount of Rs. 3,03,100/- from the opposite, accordingly we answered Point No- 2.
POINT NO.3:-
27. In view of the findings on Point Nos. 1 & 2 , we proceed to pass the following order.
ORDER
The complaint filed by the complainant is partly allowed with cost.
Complainant is entitled to recover total amount of Rs. 3,03,100/- from opposite.
Opposite is hereby granted one month time to make the said payment to the complainant from the date of this judgment.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 28-11-11)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
