Ld. Advocate(s)
For Complainant: Debraj Das
For OP/OPs : Subhasis Roy
Date of filing of the case :19.03.2018
Date of Disposal of the case : 12.07.2023
Final Order / Judgment dtd.12.07.2023
Complainants Abdul Sekh filed the present complainant against the aforesaid opposite parties under section 12 of the Consumer Protection Act, 1986 alleging deficiency in service and Medical negligence and praying for compensation amounting to Rs.18,00,000.00(Rupees Eighteen Lakhs), Rs.40,000.00(Rupees Forty Thousand) as cost of medical treatment and Rs.10,000.00(Rupees Ten Thousand) as litigation cost.
It is the allegation of the complainant that he was suffering from cataract problem and visited to OP No.1 and was treated before him on payment of fees for his left eye on 06.10.2017 and on that time OP No.1 advised for phaeco surgery. Complainant was admitted before OP No.2 on 14.10.2017 as per advised of OP No.1 for his phaeco surgery under OP NO.1 and phaeco surgery over the left eye of the complainant was done there. After the said operation complainant purchased some medicines as per advised of OP No.1.
The phaco emulsification surgery is a very simple and common surgery of eye by a small surgical instrument (Phaco Probe) is inserted into the eye. Sound waves which used to break the cataract into small spices. Sometimes a lesser is used too. The cataract and lens pieces are removed from the eye using suction and intraocular lens (implant) may then be placed inside the lens capsule. Patient was discharged on the same day. Next review date was fixed on 22.10.2017. After surgery complainant was feeling too much pain and redness in his left eye and on 17.10.2017 he further went to the private chamber and nursing home of OP No.1 though next date for check up was fixed on 22.10.2017. On 17.10.2017 OP No.1 prescribed some medicines to the complainant and he purchased those medicines and advised to the complainant and he purchased those medicines and advised for a further operation as the lens has been distorted and he fixed 21.07.2017 for further surgery on the left eye of the complainant. After second time operation complainant visited the private chamber of OP No.1 on 27.10.2017 and 17.11.2017
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on that time he prescribed some medicines to the complainant and complainant purchased those medicines but he did not get any fruitful result. Thereafter, condition of the complainant became more serious and his pain redness became increased then complainant further visited to the private chamber of OP No.1 on 24.11.2017. On that date OP No.1 did not provide proper treatment. Thereafter, left eye of the complainant become blind absolutely and he became workless. Complainant visited to Minerva DSA Hospital on 12.12.2017 under Dr. Ratnesh Prokash and said doctor stated that he is unable to do anything because condition of the left eye of the complainant is out of control. Attending doctor of Minerva DSA Hospital prescribed some medicines but no fruitful result was found. On 12.12.2017 left eye of the complainant was totally damaged and he is absolutely blind. Complainant is a very poor person and he spent Rs.40,000/- (Approx.) for his aforesaid treatment. Hence, he filed this case.
OP NO.1&2 contests the case by filing a joint W/V. They denied the entire allegations made in the petition of complaint. He further stated that from the documents it would be cleared that in spite of the specific advice given by OP NO.1 on 24.11.2017, complainant did not go to any Glaucoma specialist rather he went to Pro-OP NO.3 who is an ophthalmologist. It will be clear from the prescription of proforma OP NO.1 Dr. Ratnesh Prokash that on that time there was vision on the left eye was 6/36 but it was unfortunate that complainant ignored the advised of OP NO.1 the reason best known to him. They prayed for dismissal of the case.
Trial
During trial complainant filed affidavit in chief. OP NO.1 also filed affidavit in chief.
Documents
Complainant produced some documents viz :
- Original copy of Prescription issued by Minerva DAS Hospital, Krishnagar dated 12.12.2017..........(One sheet)
- Original copy of prescription issued by Dr. I. Ahmed dated 24.11.2017.....(One sheet)
- Original copy of prescription issued by Dr. I. Ahmed dated 27.10.2017 and 17.11.2017.....(One sheet)
- Original copy of discharge certificate issued by Shefa Eye Clinic & Nursing Home dated 21.10.2017..........(One sheet)
- Original copy of prescription issued by Dr. I. Ahmed dated 17.10.2017.....(One sheet)
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- Original copy of discharge certificate issued by Shefa Eye Clinic & Nursing Home dated 14.10.2017..........(One sheet)
- Original copy of prescription issued by Dr. I. Ahmed dated 06.10.2017.....(One sheet)
- Original copy of Blood Sugar PP issued by Tropical Pathology dated 06.10.2017.......(One sheet)
- Original copy of ECG Report dated 06.10.2017.......(One sheet)
10)Original copy of Money Receipt amounting to Rs.7500/- issued by Eye Clinic & Nursing Home dated 14.10.2017..........(One sheet)
11)Original copy of OPD patient Card issued by Department of Health & Family Welfare dated 13.03.2018..........(One sheet)
12)Original copy of Money Receipt issued by Disha Eye Hospitals Pvt. Ltd. Barrackpore..........(Ten sheets)
13)Original copy of Cash/Credit Memo issued by Disha Eye Hospitals Pvt. Ltd.......(Six sheets)
14)Carbon copy of Discharge certificate issued by Disha Eye Hospitals Pvt. Ltd. dtd. 21.05.2018..........(One sheet)
15)Original copy of treatment sheet issued by Disha Eye Hospitals Pvt. Ltd.....(Seven sheets)
16)Original copy of pathology Division Report issued by Disha Eye Hospitals Pvt. Ltd. dtd. 19.03.2018...........(Two sheets)
17)Xerox copy of prescription issued by Minerva DSA Hospital dated 12.12.2017..........(One sheet)
18)Original copy of letter along with four men committee Medical Board Report issued by CMOH, Nadia dated 15.05.2018.........(Three sheets)
19)Original Envelop...........(One No.)
BRIEF NOTES OF ARGUMENT
Complainant filed BNA. OP NO. 1&2 filed BNA on 18.03.2023.
Decision with Reasons
We have carefully gone through the petition of complaint filed by the complainant, W/V filed by the OP No.1 & 2, documents filed by the
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complainant, BNA filed by the complainant and BNA filed by the OP No.1 & 2. We have carefully considered these documents.
On perusal of affidavit in chief filed by the complainant, we find that complainant corroborated the facts which he stated in the petition of complainant.
On perusal of affidavit in chief of OP No.1, we find that he also corroborated the facts which he stated in the W/V.
On perusal of record, we find that it is admitted position that complainant went before OP No.1 and OP No.1 took admission before OP NO.2 and thereafter phaco-emulsification was done on the left eye of the complainant on 14.10.2017.
It is the allegation of the complainant that immediately after the aforesaid operation he felt too much pain and redness in his left eye and went before OP NO.1 on 17.10.2017 then he advised some medicines and that time OP NO.1 advised for a further operation as the lens has been distorted and thereafter second time operation over the left eye of complainant was done on 21.10.2017. But curious enough that OP NO.1 & 2 did not disclose the said fact in their W/V. They became silent in their W/V on this point. We failed to understand as to why the OP No.1 & 2 did not give any explanation under what circumstances, they advised operation for the second time in the left eye of the complainant.
On perusal of prescription dated 06.10.2017, we find that complainant went before OP No.1 then he advised foldable lens of left eye of the complainant and also advised some tests. We find that on 06.10.2017 blood test of complainant in respect of blood sugar PP was done as per advised of OP NO.1.
On perusal of money receipt dated 14.10.2017 issued by OP No.2, we find that OP No.2 took Rs.7,500/- from the complainant.
On perusal of discharge letter dated 14.10.2017, we find that phaco-emulsification with foldable lens over left eye of the complainant was done on 14.10.2017 and he was discharged on the same date at 1:30 p.m. and on that time OP NO.1 advised some medicines.
On perusal of prescription dated 17.10.2017, we find that complainant came before OP NO.1 and on that time OP NO.1 advised some medicines and also directed him to appear on 21.10.2017.
On perusal of discharge certificated dated 21.10.2017, we find that complainant took admission on 21.10.2017 before OP NO.2 under OP NO.1 and he was discharged on 21.10.2017 at 3:30 p.m. OP NO.1 made diagnosis “distort lens LE”. At the time of discharge OP NO.1 advised some medicines.
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On perusal of prescription dated 27.10.2017 issued by OP NO.1, we find that he after examining the complainant advised some medicines.
On perusal of prescription dated 24.11.2017 issued by OP NO.1, we find that he advised some medicines and referred to Glaucoma specialist.
Complainant alleged that due to the aforesaid prolonged treatment of OP NO.1, he did not get any fruitful result. As a result he compelled to go before Pro-OP NO.1 & 2. We find that Pro-OP No.1 gave treatment to the complainant and on that time he found vision in the left eye of complainant 6/36 but he found PL+. He advised some medicines.
On perusal of document of Institute of Ophthalmologist dated 13.03.2018, we find that complainant started his treatment there. We find that from documents on record that complainant also continued his treatment before Disha Eye Hospitals.
On perusal of treatment papers of complainant, we find that complainant ultimately almost lost his vision in the right eye.
Complainant alleged that due to negligence of OP NO.1 in the treatment of complainant, left eye of the complainant became blind. OP NO.1 & 2 almost silent relating to the entire allegation of the complainant. They only denied the allegation of the complainant but did not give any explanation as to why the left eye of the complainant lost its vision. They stated in the W/V that when complainant went before Pro-OP No.1 then vision was available in the left eye of the complainant and it was 6/36. He did not give any explanation in his W/V how the complainant became blind.
Curious enough that OP No.1 is silent in his W/V as to why complainant compelled to go for second time operation for his left eye under OP NO.1.
We find from the documents of record the first operation over the left eye of the complainant was done on 14.10.2017. It is also clear before us that immediately after the said operation, complainant felt some complications and compelled to go before the OP NO.1 on 17.10.2017 and on that time he advised some new medicines, which indicates that complainant felt some complications and as a result OP NO.1 compelled to advise some new medicines.
I also find from the documents on record that second time operation over the left eye of the complainant was done on 21.10.2017 due to “Distort lens LE”. OP No.1 failed to give any explanation as to why second time operation was done over the left eye of the complainant. He failed to give any explanation as to why the lens was distorted over the left eye of the complainant. We failed to understand as to how the lens
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became distorted within 7 days. We also find that complainant compelled to go before the OP No.1 on 27.10.2017 and 17.11.2017 relating to some problems. On both the dates complainant advised different medicines which indicates that complainant felt some complications over his left eye, even after second time operation on 21.10.2017.
Let us see report of medical board which was formed by the CMOH, Nadia as per order no.2 dated 23.03.2018. We find that four doctors were the member of the said medical board. They stated that:-
Going through the papers and prescriptions I observed that the operation was tried-after all pre-operative measure – in the left eye of the patient which did not run very smoothly as expected. When IOL subluxation was noted it was corrected by AC IOL implantation – one established procedure. High
Intraocular pressure was treated conservatively with Cycloplegics, Steroids and anti glaucoma medications. When it was not working properly and still in a salvageable condition – he was referred to glaucoma specialist-an advice which complainant never followed. Even the second ophrhalmologist never stated that the OP 1 was negligent and resorted to expectant treatment. In my view I have not found that Dr. Imtiaz Ahmed and OP2 – that is Shefa eye clinic and nursing home were guilty of negligence.
In this situation one question has arisen in our mind that aforesaid report of medical board is totally binding upon this Commission or not.
Hon’ble Supreme Court in a decision V. Krishna Raw Vs. Nikhil Super speciality Hospital, 2010 (5) SCC 513 held:-
18.3.7. “Role of Expert Evidence:- An expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora 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 order.
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It is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert may form its own judgment by its own observation of those materials.”
In view of the said decision Commission may formed its own judgment by its own observation of the materials.
In this aspect Maharashtra State Commission observed:-
“Complainant aged 67 years underwent coronary artery bypass grafting. During the postoperative period he developed severe lung infection. Subsequently pus started oozing out from the infection site. Some antibiotics were prescribed but sinus developed. 21 days later he was operated for removal of 3 wires, which got infected, out of which two were removed along with infected cartilage. One wire was removed later after 1 month. The patient had to continue dressings for the wound. There was negligence in hospital. The surgeon was very casual in his approach in his prescribing antibiotics and doing pus culture after a month after purulent discharge started and in asking the patient to discontinue the antibiotics though the wound was still oozing. It is the duty of the surgeon conducting quadruple vessel coronary artery bypass surgery to diagnose post operative sterna infection early and give treatment by prescribing antibiotics after making the site from pus culture.
Surgery was conducted for removal of stones; the patient did not improve after surgery and developed obstructive jaundice and no proper treatment was given for it. The surgeon instead of taking immediate steps to drain fluid collection delayed to correct the problem. The National Commission observed that having known that it was a case of obstructive jaundice delaying in taking appropriate steps amounted to deficiency in service. It also observe that the doctors have acted maliciously by scoring out the words ‘flapping tremor and drowsiness’ in the case sheet and rejected the explanation offered that the entry was made by the house surgeon. It awarded compensation of Rs.3,20,000/-.”
In this aspect one question has arisen whether OP No.2 is liable or no. In this aspect we find that Hon’ble Madras High Court in a decision reported in 2002 ACJ 954 held:-
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“Hospital is vicariously liable for negligence of the surgeon who conducted the operation, observing, that the terms under which the hospital employs the doctors and surgeons are between them and because of this it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. Where an operation has been done negligently without bestowing normal card and caution, the hospital cannot be allowed to escape from the liability by stating that there is no master and servant relationship between the hospital and the surgeon, who did the operation. The hospital is liable for the negligence of the surgeon and it is nomore a defence to say that the surgeon is not a servant employed by the hospital.”
Hon’ble NCDRC in a decision R.K. Akhouri (Dr) Vs. Sri K.N. Lal reported 2003 CTJ 761 (NC) held where a complainant was operated for cataract and lost his vision after operation, National Commission found the doctor to be negligent and careless and directed him to pay compensation amounting to Rs.5,55,000/-.
Hon’ble SCDRC, Andaman and Nicobar Islands S.K. Alagri Vs. Rohindro Lal dated 09.08.2017 found that left eye was permanently blind and awarded compensation amounting to Rs.3,05,593.45 towards travelling and medical expenditure and further allowed compensation amounting to Rs.3,00,000/- for mental agony, harassment and loss of vision.
Having regard to the aforesaid discussion, documents on record , we find that OP No.1 took casual approach regarding post operative situation of the complainant, he did not take proper steps as a responsible medical officer for proper treatment of complainant , as a result complainant lost his vision in the right eye.
Having regard to the aforesaid discussion, it is clear before us that complainant is the consumer and OPs are the service provider.
Having regard to the aforesaid discussion and considering the documents on record, we find that OP NO.1 was very much negligent in the treatment given to OP No.1 on 14.10.2017, 17.10.2017, 21.10.2017, 27.10.2017, 17.11.2017 and 24.11.2017.
Due to the aforesaid negligence in treatment by OP NO.1, complainant suffered a lot and lastly lost almost vision in the left eye and OP NO.1 is totally responsible for the aforesaid loss of vision of the complainant.
Hence, OPNo.1 being the treating doctor and OP NO.2 being the nursing home authority should be asked to pay adequate compensation in favour of the complainant for his aforesaid loss of vision.
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Accordingly, we find that complainant has able to established his grievance by sufficient documents beyond reasonable doubt and he is entitled to relief as per his prayer.
In the result, present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed on contest against the OP No.1 & 2 and dismissed ex-parte against Pro-OP NO.1& 2 with cost of Rs.10,000/- (Rupees Ten thousand) to be paid by OP NO.1 & 2 in favour of the complainant.
OP No.1 & 2 jointly or severally are directed to pay compensation amounting to Rs.5,00,000/-(Rupees five lakh) in favour of the complainant within 45 days from this date failing which aforesaid amount shall carry interest at the rate of 9% per annum from this date to till the date of actual payment and complainant shall have liberty to put this order into execution.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur,
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MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
