DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 179 of 03-07-2007<br /> Decided on :18-01-2008 <br /> <br /> Ram Parshad S/o Sh. Ram Gopal aged about 48 years, R/o Gali No. 7/2 Goodwill Wali Gali, Paras Ram Nagar, Bathinda. <br /> ... Complainant <br /> Versus<br /> <br /> 1.Dr. J.S. Sra, Sra Eye Hospital, Deep Complex, Near ICICI Bank, G.T. Road, Bathinda.<br /> 2.National Insurance Company Limited, S.C.O. 57, Ist Floor, Sector 26-D, Madhya Marg, Chandigarh through its Branch Manager.<br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh.Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> Sh. Hira Lal Kumar, Member<br /> <br /> For the Complainant : Sh. K.S. Sidhu, Advocate.<br /> For the Opposite parties : Sh. Sandeep Baghla, Advocate, for opposite party No. 1.<br /> Sh. J.S. Walia, Advocate, for opposite party No. 2.<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. Instant one is a complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act') which has been preferred by the complainant seeking direction from this Forum to the opposite parties to pay him compensation to the tune of Rs. 2,00,000/- on account of mental agony, botheration, harassment and monetary loss undergone by him and Rs. 11,000/- as cost of the complaint.<br /> 2. Factual matrix of the case leading to the filing of this complaint may be epitomised as under :-<br /> Complainant is working as mate in the office of G.E. Bathinda Cantt. His right side eye sight was weak for which he had earlier got inserted lens on 18.6.05 from Sirsa. Operation was successful and eye sight had improved. In the month of March, 2007, he had started feeling irritation in his right eye. Opposite party No. 1 was contacted by him who advised him that lens is required to be replaced with a new one and for that he has to undergo an operation. He was assured that with the replacement of lens, he would be able to view everything easily and properly. In these circumstances, he became ready and willing for getting the lens of the right side eye replaced. He got himself admitted in the hospital of opposite party No. 1 on 27.3.07. Some medicines were administered to him and eye drops were put in his right eye for a few hours before performing the operation. He was operated on 27.3.07 at about 6.30 p.m. After operation, opposite party No. 1 had put bandage on the eye. Some medicines were given. On 28.3.07, he was discharged at about 10.00 A.M. after removing the bandage. At that time, he had complained to opposite party No. 1 that he was unable to see anything from the right eye. Opposite party No. 1 had assured that it was due to operation and change of lens and that he would be able to see everything within 24 hours. Some oral medicines and eye drops were advised. A sum of Rs. 7,000/- were charged on 27.3.07 in advance before performing the operation towards operation fee, medicines, IOL and room rent. After he was discharged from the hospital, he was taking the medicines as advised by opposite party No. 1. He used to clean the operated eye twice daily and was using protective goggles. He was unable to see anything from the right eye even after the passage of 24 hours. On the night of 28.3.07, he had started feeling pain and irritation in the operated eye. Opposite party No. 1 was contacted on phone. Advice was given by him to clean the eye, take medicines and to come to the hospital in the morning at 10.00 a.m. Despite the fact that he cleaned the eye and put eye drops in his operated eye, he felt no relief from pain and irritation for whole of the night. On 29.3.07, he came to opposite party No. 1 at about 8.30 A.M. Request was made to Receptionist to call the doctor immediately as he had severe pain in the eye. Opposite party No. 1 instead of coming to the hospital, had sent message that he would come at 10.00 a.m and that he should wait. It was not possible for him to wait as there was excessive pain. His son had personally gone to opposite party No. 1. After great pursuation, opposite party No. 1 came to the hospital at 9.10 a.m. and his (complainant's) eye was checked. Opposite party No. 1 was told by him that he has become blind from the right eye. He was assured that it would take sometime to adjust the lens. Some injection was given to him to remove the irritation. Thereafter he was taking proper medicines and precautions as advised by opposite party No. 1. He kept on reporting to opposite party No. 1 about his blindness from the right eye but he paid no heed and continued putting of the matter on one pretext or the other. He paid visit to civil hospital on 19.5.07 and got his eye sight checked. Doctors declared complete blindness of the right eye. It is alleged by him that blindness from the right eye is due to wrong diagnosis and unsuccessful operation performed by opposite party No. 1. It is due to the negligence on the part of opposite party No. 1 in performing the operation and giving medicines that he has become blind. Act and conduct of the opposite party No. 1 has caused him mental tension, agony, botheration and harassment. He has undergone great monetary loss. He is unable to go to any place without assistance of atleast one person. In these circumstances, he alleges deficiency in rendering services on the part of the opposite party No. 1.<br /> 3. On being put to notice, opposite party No. 1 filed his version taking legal objections that complaint is not maintainable in the present form; complainant is estopped from filing it by his act and conduct; intricate and contentious questions of facts and law are involved which require extensive oral as well as voluminous documentary evidence and as such, complaint cannot be decided by this Forum in summary procedure and complainant has not approached this Forum with clean hands. He is M.S. (Opthamology) and has sufficient experience of 11 years at his credit in performing surgeries of eyes. On merits, his plea is that on examination of the eye and history given by the complainant, it had come to light that he had undergone Cornea Transplant i.e. Keratoplasty from elsewhere. There was no IOL implant in his right eye at the time of his visit on 27.3.07. There was considerable decrease in the vision from the right eye which was confined only to hand movement close to face. He was advised to undergo operation for Phaco IOL. There could be no advice of replacement of the lens. Pros and Cons of the operation were explained to him. He had voluntarily agreed to undergo the operation. Accordingly, he was admitted. His general physical examination was got done. Everything was within the permissible limits. Dialating drops we administered after every half hour before the operation. He was explained about the procedure of the operation and the risks involved therein. He had signed consent form. His (opposite party No. 1's) operation theatre remains sterilized with Ultra Violet Light, formalin and torcilloid as a permanent feature. Surgical instruments are sterilized and auto claved. Phaco IOL was implanted in the right eye by stepwise surgical intervention under complete aseptic conditions. Thereafter anti biotic ointment i.e. Gatiquin was applied on the eye and it was bandaged. Recognized medical procedure and preventive measures to minimise the risk to the eye were adopted. Oral antibiotics were given. After operation, he was comfortable and had no complaint. He was discharged on 28.3.07 at about 3.45 p.m. in the evening. He denies that complainant had complained after the bandage was removed that he was unable to see from the right eye. A sum of Rs. 7,000/- was charged from him. When he was examined on 28.3.07 at 10.45 a.m. his vision was checked by Slit Lamp examination and it had improved to 6/60 in the right eye. There was a cornial edema, which is normal feature as the cornea of right eye was replaced in some previous operation. At about 3.45 p.m. on 28.3.07 he was reexamined and there was increase in the vision to 6/36 on Slit Lamp Examination and edema had reduced. There was no other complaint. He was discharged and advised to continue eye drops which were mentioned on the discharge slip. He was advised for further check up on 30.3.07. He denies that complainant had contacted him on 28.3.07 on telephone and had come to the hospital on 29.3.07 with pain in the eye. Rather he had contacted him only on 30.3.07 after 28.3.07. At the time of examination, he had complaint of pain in the right eye. Requisite medicines were administered and he was advised to come on 31.3.07. Thereafter, he came on 1.4.07, 2.4.07, 4.4.07, 5.4.07, 9.4.07, 10.4.07, 12.4.07, 14.4.07, 21.4.07, 28.4.07, 5.5.07 and 14.5.07. Required medicines were administered and requisite treatment was given. He was advised to come for follow up on 24.5.07 but he did not turn up. For all the post operative procedure performed by him, nothing was charged. He was found to be suffering from post operative Endophthalmitis which is known complication and most frequently encountered form of Endophthalmitis in a clinical setting. He with due diligence had adopted the standard and prescribed medical treatment and procedure which is followed for management in such like case. Visit of the complainant to civil hospital, Bathinda on 19.5.07 was at his back. He denies medical negligence, deficiency in rendering service and the remaining averments in the complaint.<br /> 4. Opposite party No. 2 filed separate reply of the complaint admitting that opposite party No. 1 has obtained professional indemnity policy from it. It is not liable to pay any compensation. In the alternative, its plea is that if this Forum comes to the conclusion that complainant is entitled to any compensation or damages, then its liability is limited and that too is subject to terms and conditions and exceptions of the policy of insurance.<br /> 5. In support of his averments contained in the complaint, complainant has produced in evidence his affidavit (Ex.C-1), affidavit of Sh. Neeraj Kumar (Ex. C-2), photocopy of discharge slip of Sra Eye Hospital (Ex C-3), photocopies of bills dated 27.3.07 (Ex. C-4 & Ex. C-5), photocopy of O.P.D. Slip of Civil Hospital, Bathinda (Ex. C-6) and photocopy of receipt (Ex. C-7).<br /> 6. In rebuttal, opposite party No. 1 has produced in evidence his affidavit (Ex. R-1), affidavit of Sarabjit Kaur (Ex. R-2), affidavit of Dr. Harminder Singh (Ex. R-3), photocopy of Indoor file (Ex. R-4), photocopies of certificates (Ex. R-5 & Ex. R-6), photocopies of prescription slips (Ex. R-9 to Ex. R-14) and on behalf of opposite party No. 2 reliance has been placed on affidavit of Sh. Ashok Gupta (Ex. R-7) and photocopy of policy alongwith terms and conditions (Ex. R-8).<br /> 7. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of opposite party No. 1.<br /> 8. It is a case of medical negligence. Onus to prove such negligence is upon the complainant in view of the authorities Shri Prasanta Kumar Chakraborty and Others Vs. Dr. Jahar Debnath & Anr 2007(3) CPR 405 (NC), Mr. Naseem Mohammed Bashir Ansari Vs. Dhange Hospital and Ors. 2007(1) CPR 351 (NC), P.N. Sudhakar Gupta Vs. Anugraha Vittala Nursing Home and Ors. 2007(3) CPR 388 (NC). A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging whether the person charged is negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. For this reference may be made to the observations of their Lordships of the Hon'ble Supreme Court in the case of Jacob Mathew Vs. State of Punjab & Anr. 2005(3) CPR 70 (SC). Complainant is required to prove that what should have been done has not been done by the Doctor or what has been done by him, should not have been done as has been held by the Hon'ble National Commission in the case of C.V.S.R. Prasad Vs. Sri Vasudha Nursing Home & Anr. 2007(3) CPR 283 (NC). Now stage is set for appraisal of the evidence on record for determining the matter in controversy in the light of these authorities.<br /> 9. Mr. Sidhu, Learned counsel for the complainant vehementally argued that complainant became blind from his right eye due to the wrong diagnosis and negligence in performing operation and giving medicines. Due to carelessness and negligence, operation of the right side eye of the complainant conducted by opposite party No. 1 has gone unsuccessful. To support it, he drew our attention to the affidavits Ex. C-1 & Ex. C-2 of the complainant and his son Neeraj Kumar respectively and the statement of Dr. M.S. Brar recorded by this Forum on 16.11.07.<br /> 10. Mr. Baghla, learned counsel for opposite party No. 1 countered the arguments of learned counsel for the complainant by submitting that there is not an iota evidence on the record to establish medical negligence on the part of opposite party No. 1. Standard and accepted medical procedure was adopted to treat and cure the complainant. If subsequently complainant developed Endophthalmitis which is a known complication, negligence on the part of opposite party No. 1 on its basis, cannot be concluded.<br /> 11. We have given our thoughtful consideration to the rival contentions.<br /> 12. Complainant does not assail the qualification of opposite party No. 1. He is Master of Surgery (Ophthalmology) as is evident from copy of the certificate Ex. R-5. Qualification and experience of opposite party No. 1 have also been explained by him in para No. 3 of his affidavit Ex. R-1. Hence conclusion is that opposite party No. 1 is well qualified and experienced doctor in the field of eyes surgery. <br /> 13. Complainant has failed to produce expert opinion to prove his allegation that there was wrong diagnosis by opposite party No. 1 and that he was negligent in performing operation and giving medicines. Affidavits Ex. C-1 & Ex. C-2 of the complainant and his son stand amply rebutted with the abundant evidence led by opposite party No.. Hon'ble National Commission in the case of Saleemuddin & Others Vs. Dr. Sunil Malhotra II(2006) CPJ 348 (NC) has held that cases of medical negligences are of special category and they need to be proved with the help of expert pinion. They cannot be said to have been proved by uncertain evidence and in realms of probability. In this case no affidavit of the expert has been placed and proved on record by the complainant to support his stance. He did not care to examine any expert. No medical literature has been brought to our notice according to which diagnosis was wrong and operation conducted by opposite party No. 1 was not as per standard norms and the medicines provided to him were not apt and appropriate. Complainant has examined Dr. M.S. Brar as CW/1. He (complainant) claims that he got himself examined from Dr. Brar on 19.5.07. CW/1 proved the prescription slip copy of which is Ex. C-6 according to which eye sight of the right eye of the complainant was Nil. He did not state at all that this blindness from the right eye was due to the negligence in diagnosis or operation conducted by opposite party No. 1. Moreover, Dr. Brar states that complainant did not disclose to him any previous treatment nor did he show any record of treatment to him. He further states that he has no opinion on the previous treatment taken by the complainant. Complainant did not go to him for follow up. Rather CW/1 has gone to the extent of endorsing the view of opposite party No. 1 by stating the Endophthalmitis is a known complication after surgery or injury and that it may lead to Phthisis Bulbi and that standard treatment for endophthalmitis is intra vitreal injection and vitrectomy. This treatment was administered by opposite party No. 1 to the complainant. Hence the statement of Mr. Brar does not advance the cause of the complainant in any manner.<br /> 14. Vague allegations have been levelled by the complainant alleging negligence regarding the operation and treatment. Complainant was operated upon by opposite party No. 1 for IOL implant in right eye on 27.3.07. Copy of the Indoor file of the complainant maintained by opposite party No. 1 is Ex. R-4. It is evident from the evidence that complainant was previously operated for Cornea transplant from some other hospital as per the history reported by him prior to operation. Before operation requisite tests of the complainant were got conducted. Risks of the operation were explained to him. Complainant had signed the consent form which is in the indoor file. In this document risks of the operation have also been explained. More common risks include : infection, bleeding, nerve injury, blood clots, heart attack, allergic reactions and pneumonia. These risks can be serious and can lead to even loss of eye and even death rarely. In this case main complication which developed was of infection. After complainant gave consent, he was operated upon. Operation was conducted in asceptic conditions as is clear from Ex. R-4, Ex. R-1 and affidavit Ex. R-2 of Sarabjit Kaur who is qualified nurse and is serving in the hospital of opposite party No. 1. She is Diploma holder in General Nursing and Midwifery and certificate to this effect is Ex. R-6. Complainant himself admits about the administration of drops before operation. Evidence has come on the file that he was comfortable after operation. No allegation has been levelled that during the stay in the hospital of opposite party No. 1 he had pain or discomfort. Complainant was discharged on 28.3.07 after 24 hours. No specific deficiency or lapse has been brought to our notice which was allegedly committed by opposite party No. 1 while performing the operation or administering medicines. Facts and circumstances and evidence lead us to no other conclusion than the one that diagnosis were proper and thereafter operation was conducted diligently, carefully and cautiously.<br /> 15. As regards post operative care/treatment, it is worth mentioning that opposite party No. 1 prescribed medicines written on the back side of the prescription slip copy of which is Ex. C-3. Precautions which were required to be observed by him have also been mentioned in the discharge slip. Complainant himself is relying upon the discharge slip. Complainant alleges that he visited the hospital of opposite party No. 1 on 29.3.07 with complaint of irritation and pain in the eye. There is no convincing evidence on this aspect. There is no record or prescription slip or any record of telephone conversation with opposite party No. 1 on 29.3.07. Complainant is alleging about the injecting of injection on 29.3.07. It is intra-vitreal injection . Record proves that it was injected by opposite party No. 1 on 30.3.07 when he had visited the hospital complaining of pain and was provisionally diagnosed to be suffering from Endophthalmitis. The aqueous tap of the right eye had been taken prior to Intra-vitreal injection for conducting of lab test on 30.3.07. It was sent to lab for culture and sensitivity test. Had the complainant visited opposite party No. 1 on 29.3.07, the same would have been performed on that day. Hence, allegation of the complainant that he paid visit to opposite party No. 1 on 29.3.07 is falsified. A perusal of Ex. R-4 reveals that test was got conducted by the complainant on 30.3.07 from Bikaner Clinical Laboratory. Requisite treatment was provided to the complainant on 30.3.07 i.e. intra-vitreal injection, bandage, eye was AC washed in the evening and Hypopyon was removed and patch was given. Oral antibiotics were also prescribed. As is clear from Ex. R-4 complainant came to opposite party No.31.3.07 as well. He was administered the Vancomycin and Ceftazldime eye drops and even the vitreous tap was taken for test from the lab and again intra-vitreal injection was repeated on 1.4.07. Copy of the lab report dated 31.3.07 is in the indoor file. Culture test from Lab had confirmed the presence of gram-negative bacteria as is obvious from copy of the report dated 1.4.07 in Ex. R-4. Thereafter on 2.4.07 opposite party No. 1 performed the AC wash followed by core-vitrectomy and intra-vitreal injection. Patch was given on the eye. On 4.4.07 eye drops of Vancomycin and Ceftazldime and Vigamox were advised to be administered alongwith Betnesol-N. This treatment was again prescribed on 5.4.07 to be followed up. On 9.4.07 opposite party No. 1 had gone for removal of IOL and re-vitrectomy under asceptic conditions and the grave prognosis was explained to him. On 10.4.07, patch given was removed and complainant was advised for medication with the eye drops. Thereafter complainant visited opposite party No. 1 on different dates i.e. 12.4.07, 14.4.07, 21.4.07, 25.4.07, 28.4.07, 5.5.07 and 14.5.07. Requisite treatment was provided. Complainant himself admits in para No. 7 of the complaint that even thereafter he was taking proper medicines and proper precautions as suggested by opposite party No. 1. Admittedly, opposite party No. 1 did not receive charges beyond Rs. 7,000/-. In other words, he did not charge anything for the post-operative treatment. Prescription slips, copies of which are Ex. R-9 to Ex. R-14 also support the plea of opposite party No. 1 about the continuous treatment of the complainant. All out efforts were made to cure the complainant. There is no evidence that treatment provided to the complainant was not upto the mark. Ex. R-3 is the affidavit of Dr. Harminder Singh Sodhi. He is qualified doctor and is practising in the field of Opthalmology. He has vast experience of 25 years in this field. He has stated in so may words that Endophthalmitis is a known post operative medical complication in eye and the same occurs despite all due precautions being taken at the time of operation by the operating/treating doctor. He has further stated that standard line of treatment to cure it is primarily by injecting intra-vitreal antibiotic injection. In case there is no improvement in the condition of eye, the same is to be followed by vitrectomy. Hence this affidavit Ex. R-3 also revitalise the stance of opposite party No. 1. Even as per medical literature i.e. Medical Book – Management of Endophthalmitis by Dr. Lalit Verma, Dr. Pradeep Venkatesh and Dr. H.K. Tewari, Post-operative endophthalmitis is a catastrophic complication in intraocular surgery.<br /> 16. On the basis of evidence which is before this Forum, crux of the matter is that opposite party No. 1 has adopted the accepted medical treatment and discharged the complainant when he had no complaint about operated eye. If subsequently some complication had cropped up, it cannot be considered medical negligence. For this reference may be made to the view expressed by the Hon'ble National Commission in the case of Md. Abbas Ansari Vs. Dr. Rameshwar Pd. Aggarwal 2007(1) CPR 346 (NC). When opposite party No. 1 has performed his duty carefully in deciding the diagnosis, performing operation, providing treatment, he cannot be held negligent or deficient in rendering service merely on account of the fact that complainant has gone blind from his right eye due to known complication. For this, we get support from the authorities Sh. MA. Ganesh Rao Vs. Dr. T.M.A. Pai Rotary Hospital & Ors 2006(3) CPR 328 (NC), Raj Kumar Gupta & Ors. Vs. Dr. P.S. Hardia & Anr. 2007(1) CPR 258 (NC) and Vidya Bhushan (Dr.) Vs. Madan Awadhesh Institute & Anr. I(2007) CPJ 70 (NC). Their Lordships of the Hon'ble Supreme Court in the case of Jacob Mathew Vs. State of Punjab & Anr (Supra) has also observed that a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invaribly be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence.<br /> 17. In the premises written above, unescapable conclusion is that no medical negligence or deficiency in service on the part of opposite party No. 1 is proved. Complaint being devoid of merits is dismissed. Keeping all the relevant facts, circumstances and in the interest of justice in view, parties are left to bear their own costs.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned to record room. <br /> Pronounced :<br /> 18-01-2008 (Lakhbir Singh )<br /> President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member