<br /> <br /> <br /> BY SRI.K. VIJAYAKUMARAN ACHARY, PRESIDENT.<br /> <br /> This is a complaint seeking compensation for medical negligence.<br /> <br /> <br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> <br /> The 1st opp.party is ophthalmology attached to the 2nd opp.party hospital. The complainant who is a patient has availed the service of opp.parties by paying consideration and as such a consumer of the opp.parties. The complainant was having complaint of cataract in her right eye. The Alayamon Grama Panchayat Saksharatha Mission Vidhya Kendram, Anchal Block Panchayat Vikasana Kendram and the 2nd opp.party had conducted an eye examination camp as a joint venture. The complainant registered her name in the said camp remitting Rs.10/- towards registration fee. On attending the camp, the complainant was examined by the Doctors in the camp and diagnosed that the complainant had cataract in her right eye and a surgery was suggested. Accordingly the complainant was admitted in the 2nd opp.party hospital and the 1st opp.party conducted cataract surgery on the complainant’s right eye on 11.10.2002. The 1st opp.party had conducted the surgery very hastily and without attributing reasonable skill and care. Soon after the surgery the complainant felt irritating pain and bleeding from the right eye. The 1st opp.party was conducting surgery on a large number of patients and was very hastily conducting surgery. After the surgery, the complainant’s right eye was dressed and she was taken to post operative ward when dressing was removed the complainant shockingly realized the cruel fact that her vision of right eye was completely lost. On 12.10.2001 the complainant was issued with a bill for Rs.1,000/- of the 2nd opp.party which was paid by the complainant. After discharge, the complainant went to the 2nd opp.party hospital and was seen by the 1st opp.party several times. But the 1st opp.party was reluctant to attend the patient . Finally due to the insistence of the complainant she was referred to Dr. Meena Chakravarthy of Cosmopolitan Hospital, Thiruvananthapuram where she was admitted as an impatient on 5.12.2001 she was subjected to various tests of the eye at the Cosmopolitan Hospital also. Finally it was diagnosed that there was retinal detachment in right eye of the complainant which was caused due to the negligently conducted cataract surgery by the 1st opp.party. Asurgery was also conducted on the right eye of the complainant on 6.12.2001 and she was discharged on 8.12.2001. The complainant had to incur an expenditure of Rs.12,000/- at the Cosmopolitan Hospital. She was also given medicine and advised review after one month . Accordingly the complainant went after one month for review. On examination it was revealed that there is no improvement in the condition of her right eye. On 1.6.2002 the complainant visited Dr. S.R. Krishna Moorthy, Civil Surgeon consultant Opthalmologist, Taluk Hopsital, Kottarakkara . After examination and various tests it was diagnosed that the complainant is suffering from damage to the eye ie. Retinal Detachment of right eye. The complainant lost her vision of right eye due to the negligently conducted cataract surgery by the 1stopp.party. Had he been more careful, such an unfortunate incident would not have been occurred. Retinal detachment is caused only on account of highly negligent and irresponsible manner in which the 1st opp.party had conducted cataract removal surgery. Hence the complaint. <br /> <br /> Opp.parties filed a joint version contending that the complaint is not maintainable. It is submitted that the 1st opp.party is an Opthalmologic Surgeon attached to the 2nd opp.party hospital. The allegation in para NO.1 that the complainant had paid the entire consideration is false . The complainant having been a eye-camp detected patient, surgery was done free of cost. No rental or other hospital charges were levied from the complainant. The material cost of implanted lens was only charged from the complainant. Hence the complainant is not a consumer. During inspection of right eye of the complainant, cataract of the right eye was diagnosed and surgery was suggested. The allegation that perfect vision was assured is incorrect and hence denied. The cataract surgery on the complainant’s right eye was done by the first opp.party at the rnd opp.party hospital on 11.10.2001 The opp.party carried out the cataract surgery with due care and caution and by adapting appropriate expertise under asceptic conditions. The surgery was successful. The mature cataract in the right eye was removed and lens implantation was also done during the surgery. There were only2 more patients by name Karthiyayani aged 75 years and Parukutty Amma aged 72 years for the 1st opp.party to conduct surgery and both of them regained vision after their cataract surgery. The allegation that there was large number of patients for surgery on that day is factually false and hence denied. The further allegation that the surgery was done without due skill and care and in haste are all false and hence denied. The allegation that soon after the surgery the complainant felt irritating pain and bleeding from the right eye are also false. During the inpatient period, during surgery and during the period of treatment as inpatient best facilities were provided to the complainant by the 2nd opp.party hospital. On review examinations it was found that the patient was not having good vision as expected. She had admitted again for further evaluation on 31.10.2002 the two possibilities were a Retinal disease or a post operative inflammation. The post operative inflammation will subside with treatment The complainant was treated for postoperative inflammation with appropriate medicines. Since she was not gaining vision with treatment, within a reasonable period the other possibility was thought to be probable. Since the facilities for diagnosing retinal diseases is not available in the 2nd opp.party hospital the patient was referred to Dr. Meena Chakravarthy at Cosmopolitan Hospital, Thiruvananthapuram for further management. On enquiry by the 1st opp.party it was found that the expert surgeon had done a detailed examination of the complainant and found the PCIOL [Posterior Capsule Intra Ocular Lens], the implanted lens, were well positioned. The expert had further opined that the visual loss of the complainant was due to the sequlate [abnormal condition resulting from pre-existing disease] of retinal vascular occlusion and that the condition of the patient did not have anything to do with the cataract surgery. The expert surgeon had carried out ocular examination as well as ‘B’ Scan Ultra Sonography during which it was revealed that there was a dense white and old organized vitreous hemorrhage with sub total PVD [Posterior Vitreous Detachment] attached to optic disc, and that there was evidence of shallow retinal separation at the post pole. Only by adapting such diagnostic procedure, elaborate details as such could be identified and that too only after the cataract removal. The complainant was advised to undergo para plana vitrectomy under guarded visual prognosis. The complainant underwent the above said procedure and retina operation evaluation revealed a combined old central retinal artery and vein occlusion with sequlae in the form of macular degeneration with hole and post pole shallow retinal detachment. The development of such a condition could not under any circumstance be caused by cataract surgery. The above said diagnosis would not have been possible when mature cataract was present in the right eye . Initially the only prognosis was that mature cataract was the reason for the loss of vision. Removal of the cataract was the only solution in such circumstances and that alone was done during the surgery. The revealed condition of the patient was quite old and was not due to the cataract surgery. Such condition also cannot occur even if there was any flaw during cataract removal. The allegation that the retinal detachment in the right eye was caused due to the negligently <br /> conducted surgery by the 1st opp.party in removing the cataract is absured and an impossibility. Cataract is a layer on the anterior part of the eye and removal does not involve any internal organ of the eye. Further it was also revealed that retinal detachment was due to old central retinal artery and vein occlusion which have developed due to some condition which happened long beforehand and not during the cataract surgery. There is no deficiency in service on the part of the opp.party. Hence they prays to dismiss the complaint.<br /> <br /> <br /> The points for consideration are:<br /> <br /> 1. Whether or not the complainant a consumer?<br /> 2. Whether there is any deficiency in service on the part of the opp.parties<br /> 3. Reliefs and costs.<br /> <br /> <br /> For the complainant PW.1 to PW.3 are examined. Ext.P1 to P6 are marked.<br /> <br /> <br /> For the opp.party DW.1 is examined. Ext.D1 to D7 are marked.<br /> <br /> For the complainant PW.1 to 3 are examined. Exts.P1 to P6 are marked.<br /> <br /> For the opp.party DW.1 is examined. Ext.D1 to D7 are marked.<br /> <br /> <br /> Point No.1<br /> <br /> The contention of the complainant is that she is a consumer within the meaning of section 2[1] [d] of the Consumer Protection Act 1986. According to the opp.parties the service rendered to the complainant is without consideration and absolutely free of charge and as such the complainant will not come within the purview of Sec. 2[1] [d] . It is argued by the complainant that the opp.parties have collected Rs.1000/- as per Ext.P2 and therefore it cannot be said that the service rendered is not free of charge. According to the opp.parties the amount as per Ext.P2 is the value of lense to be implanted in the eye of the complainant and not towards the charges for surgery or for any other expenses in connection with the treatment or towards hospital charges. PW.1 has not produced any other material to show that she had paid any other amount. Therefore it is obvious that the surgery and treatment are absolutely free and as such the complainant cannot be treated as a consumer within the meaning of Section 2[1] [d] of the Consumer Protection Act 1986. Point found accordingly.<br /> <br /> <br /> <br /> <br /> Points No.2 and 3<br /> <br /> The contention of the complainant is that she had lost the vision of her right eye completely after the surgery performed by opp.party 1 in opp.party 2 hospital which happened due to the negligence of opp.party.1 . It is argued that the 1st opp.party has not conducted any tests before conducting surgery which itself would indicate that opp.party was negligent. It is further contended that the surgery was conducted hastily and negligently as there were a number of patients Ext.D2 show that urine sugar of the patient was tested on 8.11.2001 and was found nil. DW.1 has stated that there were only 2 more patients other than PW.1 for him for eye operation on that day and the complainant failed to establish that there were more patients and so surgeries were performed hastily.Now the question is whether DW.1 was negligent in performing surgery. The contention of the complainant is that DW.1 failed to check blood sugar, pressure, heart variation etc. which would establish negligence on the part of the opp.party. Ext.D2 would show that urine sugar was tested on 8.10.01 and was found nil, Ext.D4 would show that blood pressure was checked and fundus examination was conducted and it is stated that right eye fundus not seen because of mature cataract and that left eye fundus was normal. DW.1 has stated in cross examination that both the eye of PW.1 was dilated and examined. The learned counsel for the complainant would argue that the statement of DW.1 that the eyes of PW.1 were dilated and examined is not true which can be seen from Ext.P3 where it is stated that pre operative fundus examination was not possible due to cataract changes which is what is stated in Ext.D2.<br /> <br /> The learned counsel for opp.parties argued that all required tests were conducted by the 1st opp.party as required before surgery and the surgery was performed with due care and caution. DW.1 has state in cross examination in the reverse side of page 1 of his deposition that though attempt was made to see the retina of the right eye of PW.1 after dilating her eyes the same was not visible due to matured cataract and fundus examination was not possible because of it. He had denied the suggestion that every if there is matured cataract if the eyes are dilated the inside of the eye is visible. According to opp.party.1 the retina became visible only after the removal of matured cataract and at the time of review it was noticed that the vision has not improved and so the patient was again admitted on 31.10.01 for further evaluation and she was given treatment for post operative inflammation and as there was no improvement he come to the conclusion that the reason for poor vision is retinal disease and as there were no facilities for diagnosing retinal disease the patient was referred to Dr. Meena Tchakaravarthy for further evaluation. Nothing is produced to show that the procedure adopted by Opp.party 1 or treatment given by him is not proper.PW.2 is Dr. Meena Chakravarthy to whom PW.1 was referred by opp.party1. She has stated that on examination of PW.1 it was found that PW.1 has organized vitreous Hemorrhage in her right eye and that on examination with B. Scan ultra sonography it was revealed that there was total vitreous Hemorrhage and the membrane over the posterior pole of the eye and she was advised to undergo a surgical procedure to remove the blood from the eye and on removing the blood from the eye it was seen that she had on old central retinal vein occlusion with sequlac. PW.2 has categorically stated that the vitreous hemorrhage has no connection with the cataract surgery done by the 1st opp.party . PW.2 has further stated that the lens implanted by opp.party 1 in the eye of PW.1 was well positioned. PW.2 has asserted that there was no negligence on the part of the opp.party 1 in conducting the cataract surgery on PW.1 From the evidence of PW.2 the contention that vitreous hemorrhage was caused due to negligent cataract surgery will not sustain for a moment . It is also worth pointing out in this context that not even a suggestion was put to PW.2 that the procedure adopted by opp.party is wrong or that opp.party 1 has not exercised due care and caution PW.3 who is another expert summoned by PW.1 and who has issued Ext.P6 certificate has stated in cross examination that PW.1 is suffering from retinal detachment of right eye which is possible due to vitreous hemorrhage. No question was put to PW.3 also with regard to any negligence on the part of opp.parties. The burden to establish negligence on the part of the doctor who performed surgery is on the complainant and from the available evidence now before us we find that the complainant failed to prove negligence or deficiency in service on the part of the opp.parties. Point found accordingly.<br /> <br /> <br /> <br /> In the result the complaint fails and the same is dismissed. We make no order as to costs.<br /> <br /> <br /> <br /> Dated this the 24th day of May, 2008<br /> <br /> <br /> <br /> I N D E X<br /> <br /> List of witnesses for the complainant<br /> PW.1 – Thankamma<br /> PW.2. – Meena Chakravarthy<br /> PW.3. – Dr. S.R. Krishnamoorthy<br /> <br /> <br /> List of documents for the complainant<br /> P1. – Notice<br /> P2.- Bills<br /> P3. – Treatment details<br /> P4. – Discharge summary and Instructions<br /> P5. – Medical certificate<br /> P6. – Medical certificate issued by Dr. S.R. Krishnamoorthy<br /> <br /> <br /> List of witnesses for the opp.parties<br /> DW.1. – Dr. John.P. Lukose<br /> List of documents for the opp.parties<br /> D1. – Medical report<br /> <br /> D2. – Authorization letter<br /> D3. –Laboratory report<br /> D4. – Case sheet<br /> D5, - Consent for cataract operation<br /> D6. – Nurse’s record<br /> D7. – Nurse’s record<br /> <br />