Punjab

StateCommission

CC/10/90

Nail Dalip Kumar - Complainant(s)

Versus

Dr. K.D. Singh - Opp.Party(s)

Gurinder Singh Lalli

13 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                                               PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                             Consumer Complaint No.90 of 2010

 

 

                                                          Date of Institution: 09.12.2010  

                                                          Date of Decision :13.02.2015

 

Naik Dalip Kumar Son of  Sh.Diwan Chand, Behrampur Road, c/o Guru Nanak Electrical Works, Gurdaspur, Punjab Nanak Electrical Works, Gurdaspur, Punjab (since deceased) through his legal representatives

 

1.       Smt.Asha Devi wife of Late Sh.Dalip Kumar.

2.       Harvinder Kumar (son)

3.       Amarjit (son)

          All residents of c/o Guru Nanak Electrical Works, Behrampur Road,              Gurdaspur

4.       Smt.Mamta daughter of Dalip Kumar now wife of Sukhbir Singh,          resident of near Chakki Bank Station, Pathankot.

5.       Smt.Reeta daughter of Dalip Kumar now wife of Vipan Singh,     resident of New Shastri Nagar, Pathankot.

6.       Smt.Renu daughter of Dalip Kumar, now wife of Sanjeev Kumar,          resident of Sangalpura Road, Gurdaspur.

 

                                                                             …..Complainants…..

         

                                      Versus

 

1.       Dr.K.D Singh of K.D Eye Hospital, Patel Chowk, Pathankot.

2.       Dr.K.D Singh, resident of Patel Chowk, Pathankot, Punjab

 

 

                                                                             ….Opposite parties….

 

         

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

Present:-

 

          For the complainant         :         Sh.G.S Lalli, Advocate

          For the opposite parties   :         Sh.D.K. Gupta Advocate

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The complainant Naik Dalip Kumar has directed this complaint against the opposite parties on the allegations that he retired as Naik  from the Indian Army and has been carrying on repair work under the name and style of Guru Nanak Electrical Works. That he is consumer, being beneficiary as retired army person, of the OPs. That he is entitled to medical treatment after retirement as ex-army man, in as much as Indian Army is having Ex-serviceman Contributory Health Scheme (in short "E.C.H.S" Hospital) all over India for the retired army personnel. Army is also having many private clinics on their panel like Eye Hospital and so on.  That in the month of October 2009, complainant approached E.C.H.C Poly Clinic at Gurdaspur for the checkup of his eyes, as he found some strain while doing his job in the left eye. He was referred by the above Poly Clinic of E.C.H.C to the OPs for treatment of his left eye.  On checkup of the complainant by the OPs, the OPs gave an estimate for transplantation of lens in the left eye to the tune of Rs.9000/- including price of the lens and operation charges of the complainant. The complainant disclosed the OPs that he has been a diabetic.  The SEMO 172 MIL Hospital gave approval to the estimate of the OPs for the treatment, to be rendered to the complainant, by the OPs. The OPs admitted the complainant for transplant of lens in the left eye after getting the approval of the estimate and injection was injected in the left eye of the complainant by the staff nurse namely Nishu, without any competence to do so, in the hospital of the OPs.  The complainant was operated upon and he complained of severe pain in the operated eye, thereafter.  OP told the complainant that he needed not to worry and prescribed medicines therefor.  The complainant was discharged next day from the hospital by the OPs and was called for check up after few days. The complainant approached OP for the same problem many times and lastly in the month of October 2009. The OPs referred the complainant to another empanelled eye hospital i.e Dr. Daljit Singh Hospital at Amritsar with referral slip  and complainant was admitted and treated for the pain and shrinking of left eye thereat. That Dr. Daljit Singh Hospital, Amritsar referred the complainant to Dr. Uppal Neurogist for certain tests and treatment with referral slip  and not to charge any expenses from the complainant and to debit all the expenses in the account of Dr.Daljit Eye Hospital, Amritsar. The complainant underwent certain tests at Uppal Hospital at Amritsar and remained admitted there for 2-3 days and his tests reports were sent to Dr. Daljit Singh, Eye Hospital. That complainant went to Dr. Om Parkash Eye Hospital, Amritsar  of his own for check up, which is also an empaneled on Army Hospital and complainant was prescribed certain medicines for the pain and shrinking of the left eye. Size of the left eye of the complainant was shortened due to shrinking. There was no improvement in the eye of the complainant despite tests and check up. The complainant made written complaint to the Incharge of E.C.H.C Poly Clinic at Gurdaspur against the OPs and complaint of the complainant was forwarded to Dr. D.K. Singh and he sought his explanation, but no reply was given to the complainant in this regard. The complainant sought information under RTI Act. On account of operation of the complainant, the left vision of the complainant's eye was reduced instead of improving, the complainant is unable to concentrate on repair job to start it for long time. The complainant was earning Rs.20,000/- per month from the repair and contract fitting of electricity before operation. The complainant has prayed for compensation of Rs.35,00,000/- for the loss of his vision along with interest @ 18% per annum from the date of operation till its realization from the OPs.

2.      Upon notice, the OPs appeared, filed written reply and contested the complaint of the complainant vehemently. OP raised preliminary objections  in the written reply that OP is an empanelled hospital with E.C.H.S. The complainant was referred to OP through E.C.H.S clinics on the choice of the patient himself. Necessary tests were carried out before undertaking the surgery of the complainant and approval for treatment was also sought from the E.C.H.S. The treatment was started after obtaining the permission from the competent authority of the E.C.H.S and bill for the surgery was submitted to the concerned E.C.H.S by the OPs for reimbursement along with original receipts/reports of the test and treatment of the complainant. On completion of the treatment of the patient, he was required to submit for post care check up. The complainant stated that he was satisfied with the treatment rendered to him by the OP. The payment charges of the treatment of the patient is released only, if feedback by the patient is satisfactory. E.C.H.S has not been impleaded as a party in this case by the complainant. The complainant has instituted this false and frivolous complaint. On merits, the OPs contested the complaint of the complainant by denying any medical negligence on its part. It is averred that keeping in view diabetic profile of the complainant, special permission from Incharge Military Hospital, Gurdaspur for a special Phaco operation procedures for cataract and few advanced test like Fundus Flourescein Angiography (FFA) and Optical Coherence Temography (OCT) for diabetic patient was asked for. Aforesaid tests were latest and specific for diabetic patient. The OP was very careful in conducting pre-operative check up of the complainant, being diabetic patient after taking due precautions. The complainant was operated under topical anaesthesia, which means with anaesthetic eyedrops, which was instilled for the anesthesia. However, no injection was administered to the complainant as pleaded by him. The complainant underwent Phacoemulsification operation without stitches with most advanced Baush & Lomb's Millenium Phaco Machine. It was further averred that there was no staff member by name of Nishu in the hospital of the OPs and hence no injection was given to the complainant by her whatsoever. The blood sugar level of the complainant at the time of the surgery was 118 mg, which was within the prescribed limits. The OP denied any medical negligence on its part in this case. It was further averred that complainant was not referred to Dr. Daljit Singh Eye Hospital, Amritsar in October 2009 for shrinking of his left eye.  In fact, he was referred on 18.01.2010 after more than three months from the time of his surgery as second opinion in medical practice is quite ethical. It was admitted by OPs that complainant was further referred by Dr. Daljit Singh to Dr. Ashok Uppal a renowed Neurologist at Amritsar. The complainant developed Optic Neuropathy, which was a neurological problem of the optic nerve of the eye, and hence he was referred to renowed Neurophysician Dr.Ashok Uppal by Dr. Daljit Singh Eye Hospital. On 02.02.2010, complainant approached Dr. Ashok Uppal Neurologist where Electrophysiological diagnosis was made and VER was done by flash method of both eyes. No.P-100 was formation seen on left eye, where as it was within normal limit on right eye. Conclusion made was left eye neuropathy diabetic cause. Dr. Uppal clarified that diabetic neuropathy was not outcome of surgery carried out by the OPs.  The problem of decrease in left eye vision started about mid of January 2010, whereas the operation was conducted on him on October 2010. The OPs denied any medical negligence on its part in the surgery of the complainant. It further pleaded that E.C.H.S, vide letter dated 10.06.2010, restored referral of the patients to OPs, when the complaint submitted by the complainant, after looking into it  was rejected and OPs, thus, prayed for dismissal of this complaint.

3.      The complainant tendered in evidence his affidavit Ex.C-A, copy of letter dated 25.08.2010 Ex.C-1, photocopy of Discharge Certificate Ex.C-2 and death certificate of Sh.Dalip Kumar Ex.C-3. As against it, opposite parties tendered in evidence affidavits of Dr.K.D Singh as Ex.R/A-1 and Ex.R/A-2, Full Retina Thickness Map of Dr.K.D's Eye Institute Retina Services Ex.R-1, photocopy of document of Dr.Daljit Singh Eye Hospital Ex.R-2, photocopy of Uppal Neuro Hospital Ex.R-3, photocopy of document of Dr.Om Parkash Eye Institute Ex.R-4, photocopy of map of Retina Ex.R-5 and photocopy of document Ex.R-6 and closed the evidence.

4.      We have heard Ld.Counsel for the parties and have also examined the record of the case.

5.      The OPs submitted that the complainant is not a consumer. We find that the payment of the OP was released by the E.C.H.S Hospital on behalf of complainant  and complainant is beneficiary, therefore, on the basis of law laid down by the Apex Court in Kishori Lal Vs. Chairman, Employees State Insurance Corporation, reported in AIR 2007 (SC) 1819, we hold that complainant is proved to be a consumer of the OP and hence complainant has been found a consumer within the parameters of law.

6.      The complainant relied upon Ex.C-1 report regarding follow up of the complaint, which was made against the OP for the medical negligence and for not properly conducting the eye surgery of the complainant, being a diabetic patient. Ex.C-2 is discharge/follow up card of Uppal Neuro Hospital, Amritsar. The complainant relied only on the above documents coupled with the pleadings. As against it, the OPs tendered in evidence his affidavit Ex.R-1/A. OP stated on oath in his affidavit that OPs is empanelled hospital  with E.C.H.S  for eye problems. He admitted that complainant was referred for the treatment to OPs by E.C.H.S on the choice of the patient/complainant himself. That he took permission from competent authority of the E.C.H.S before starting the treatment of complainant. That complainant was required to report after surgery for feedback to OP. He further stated that complainant never reported to him, if there was any problem after post surgery. He further stated in his affidavit that keeping in view his diabetic profile, the OP asked for special treatment from in charge Military Hospital, Gurdaspur for a special phaco operation procedures for cataract and few advanced tests like Fundus Flourescein Angiography and optical coherence tomography for diabetes. That above tests are latest for diabetic patient before taking up the surgery. He further stated that the complainant was operated under Topical anaesthesia, which means with anaesthetic eyedrops only. He denied the fact of administering of any injection to him.  He further stated on oath that complainant underwent for Phacoemulsification operation without stitches with most advanced Baush & Lomb's Millenium Phaco Machine. He denied that there was any staff member of Nishu in the hospital of the OPs. He further stated that due care was taken of the complainant after conducting the above tests, keeping in view his diabetic profile before conducting the surgery. He further stated that  complainant was not referred to Dr.Daljit Singh's Hospital at Amritsar for shrinking of his left eye. He remained fine for more than three months after surgery. Second opinion, which is just quite ethical in medical practice, could be taken.  He further stated that complainant suffered from optic nerve of the eye and Dr.Ashok Uppal found this complication of the complainant. This witness further stated that Dr.Ashok Uppal, neurologist diagnosed the complainant with electrophysiological. VER was done by flash method of both eyes. No.P-100 were formation seen on left eye, whereas it is within normal limit on right eye.  Conclusion made of complainant's problem  was left eye Neuropathy Diabetic Cause.  Dr. Uppal clarified that  problem was because of the Diabetic Optic Neuropathy and not the outcome of surgery, as carried out by the OPs. The OPs denied any medical negligence on its part in this case towards the complainant in the cataract surgery. The OPs further stated in his affidavit that even complaint of the complainant was found false by the E.C.H.S, vide letter dated 04.05.2010 and letter dated 10.06.2010.

7.      We have examined the documents on the record and the pleadings of the parties. Ex.R-1 is Full Retina Thickness Map of the complainant, Ex.R-2 is the prescription slip of Dr. Daljit Singh Eye Hospital, Amritsar of the complainant, Ex.R-3 is the report of Dr.Ashok Uppal Neuro Hospital at Amritsar, Ex.R-4 is prescription slip of Dr.Om Parkash Eye Institute, Ex.R-5 is photocopy of eye.

8.      The complainant has pleaded medical negligence in this case on the part of OPs in not conducting his surgery being a diabetic patient in a negligent manner. There is mere assertions of the complainant in this regard. The complainant has not examined any expert witness to prove any medical negligence on the part of the OPs. On the other hand, there is categorical plea as well as affidavit of the OPs that he conducted latest tests for surgery of eye of the complainant and thereafter did cataract surgery,  keeping in view the diabetic profile of the complainant. The OPs have proved that they also took permission for conducting the specify tests for diabetic patient before conducting the cataract surgery from the Military Hospital Authorities for the complainant. We find that in case the complainant suffered from Optic Neuropathy, which is neurological problem of the optic nerve of the eye, then Op cannot said to be medically negligent in that way in this case. The complaint filed by the complainant with the Army E.C.H.S Cell was also found without any basis. Ex.C-1 which is the result of the complaint of the complainant against OP, is also taken into consideration by us. It has been held that there is no evidence on the record to prove deficiency in service, being provided by Dr.K.D Singh Hospital to the complainant, as alleged. On the contrary, the hospital has acted in ethical manner before surgery and taking second opinion from Dr. Daljit Singh Eye Hospital. Military Hospital Authorities found that the present problem of the complainant is not due to complication of surgery, but a complication of old hidden diabetes with its irregular treatment. The complaint of the complainant against OPs was accordingly held to be frivolous by the Army , vide report of SEMO dated 03 June 2010 at Page No.16 on the record. There is report of Dr. Ashok Uppal neurologist, Amritsar Ex.C-2 on the record. He has also found that complainant suffered from Optic Neuropathy on account of irregular treatment of diabetes. On the other hand, OPs have categorically asserted that they conducted the test for diabetes before conducting the surgery. OPs further stated that they took extra care in this case before cataract surgery of the complainant due to his diabetic profile. OPs relied upon the case law laid down by Apex Court in case titled as Kusum Sharma  Versus… Batra Hospital & Medical Research Centre, AIR 2010 (SC) 1050, wherein it has been held by the Apex Court as under :

          "That negligence cannot be attributed to a doctor so long as he       is performing his duties to the best of his ability and with due       care and caution, merely because the doctor chooses one       course of action in preference to the other one available, he     would not be liable, if the course of action chosen by him was          acceptable to the medical profession.

          An error of judgment is not necessarily negligence. Negligence        is the breach of a duty exercised by omission to do something, which a reasonable man, guided by those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something which is prudent and reasonable man       would not do. Medical professional is expected to bring a        reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very           lowest degree of care and competence is required from him. In        the realm of diagnosis and treatment, there is scope for    genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs           from that of other professional doctor.

          It would not be conducive to the efficiency of the medical        profession, if no doctor could administer medicine without a    halter round his neck.

          The Apex Court further laid emphasis in this authority that it is          our bounden duty and obligation of the civil society to ensure     that the medical professionals are not unnecessary harassed or humiliated, so          that they can perform their professional        duties without fear and apprehension. The Medical         practitioners at times also have to   be saved from such a class          of complainants. Medical professionals are entitled to get    protection so long as they perform their duties with reasonable         skill and competence and in the interests of the patients."

9.      We find that there is no breach of duty exercised by omission to do something, which a reasonable man, guided by those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do on the part of the OP in this case. Doctor never guarantees to provide permanent cure from any problem to the patient, when he takes on his treatment.

10.    We have, thus, reached the conclusion in the light of our above discussion that the case of the complainant was only due to Optic Neuropathy, which is unrelated to his cataract surgery performed by OPs. Due care has been taken by the OP in this case of the complainant keeping in view his diabetic profile, as discussed above, No medical negligence has been proved on the record by the complainant against the OP. The complaint of the complainant about medical negligence was also found false by the Army Authorities against the OPs. The complainant failed to point out as to on what count, the OP was medically negligent in treating him. Resultantly, there is no merit in this complaint and same is hereby dismissed with costs which are quantified to Rs.2000/- .

11.     Arguments in this complaint were heard on 11.02.2015 and the order was reserved. Now the order be communicated to the parties.

12.    The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                          MEMBER

 

February, 13   2015.                                                                

(ravi)