Govt. of West Bengal

                                              DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION –NADIA

170, DON BOSCO ROAD, AUSTIN MEMORIAL BUILDING

PRESENT  :  Shri   DAMAN PROSAD BISWAS,                PRESIDENT

                   : SMT MALLIKA SAMADDAR                                  MEMBER

                   : SHRI NIROD BARAN ROY CHOWDHURY         MEMBER   

  Case No.  CC/84/2017

COMPLAINANT         :  Abdul Gani Khan,@ SK

  S/o. Late Dulal Sk,

  Resident of Vill-Rukunpur,

 P.O. Rukunpur,P.S. Dhubulia,

Dist. Nadia.

V-E-R-S-U-S

OPPOSITE PARTIES / PIN      1.Dr. Ratnesh Prokash

OPTHALMOLOGIST and Medical Officer,

Minaerva DSA Hospital,

Bhatjangla, Palpara, Krishnagar,

Dist. Nadia, Pin. 741101.

       2. The Director,

           Minaerva DSA Hospital.

Part-Nayandeep Eye Care Centre

Bhatjangla, Palpara, Krishnagar

          Dist. Nadia,PIN-741101.

    3.  The Director,

          Regional Institute of Opthalmology,

          NRS Hospital, Kolkata-73.

Ld. Advocate(s)

                   For Complainant: Debraj Das

                   For OP/OPs : Kajal Ghosh and others

Date of filing of the case                    :13.07.2017

Date of Disposal  of the case            : 31.07.2023

Final Order / Judgment dtd.31.07.2023

Complainant Abdul Gani Khan  files the present complaint against the aforesaid opposite parties under section 12 of the Consumer Protection Act, 1986 alleging deficiency in service and Medical negligence and praying for Rs.1,60,000.00(Rupees One lakh sixty thousand) as cost of medical treatment and Rs.12,00,000.00(Rupees Twelve lakhs) as compensation for his mental pain and agony and Rs.10,000.00(Rupees Ten thousand) as cost of the suit.

It is the allegation of the complainant that pheco surgery on his left eye was done on 01.11.2015 at the nursing home of OP No.2. Thereafter, complainant was again admitted at the nursing home of OP No.2 for same type of pheco surgery on his right eye under OP No.1 and he deposited Rs.6,000.00(Rupees six thousand) before them for the aforesaid surgery. Thereafter, operation was done on his right eye and OP No.1 conducted the said operation. At the time of surgery complainant was feeling pain on his right eye but OP No.1 did not pay any heed and asked him to go back his house at 8:00 P.M. Thereafter, complainant started to feel pain on his right eye and was treated under OP No.3. At the time of treatment OP No.3 opined that right eye of the complainant has totally damaged. However, OP No.3 continued treatment but gradually complainant became blind. Due to the negligent of treatment on the part of the OP No.1 & 2 complainant became blind hence the complainant lodged the aforesaid case.  

OP No.1 filed W/V and denied and entire allegation of the complaint and further stated that there was no deficiency of service and there was no negligence on his part.

OP No.2 also filed W/V and denied the entire allegations of the complainant and further stated that there was no deficiency of service and there was no negligence on his part.

(3)

Trial

During trial son of complainant Abdul Gani Khan filed affidavit in chief. He also submitted answer as per interrogatories of OP No. 1-2.

OP No.1 Dr. Ratnesh Prokash filed affidavit in chief and he also submitted answer as per interrogatories of the complainant.

Documents

Complainant produced the following documents viz :

1) Discharge Certificate.........(One sheet).....(Original)....(Annex-A)

 2)Cash Memo......(One sheet)......(Xerox)........(Annex-B)

3) Document relating to Health Card.......(One sheet)......(Computerised copy)......(Annex-C)

4)Receipt of Eye Operation dtd. 01/11/2015...(One sheet)...(Computerised copy).....(Annex-D)

5)Discharge Certificate.......(One sheet).....(Xerox).......(Annex-E)

 6)Copy of Eye Check up......(One sheet).....(Original)......(Annex-F)

7)Prescription of OPD dtd.05.01.2016......(One sheet)....(Original).....(Annex-G1)

8) Prescription of OPD......(Three Copies)....(Original).....(Annex-G2 to G4)

9)Identity Card......(One sheet).....(Xerox)......(Annex-H)

OP No.1 and 2 did not file any documents.

Decision with Reasons

It is the allegation of the complainant as mentioned in the petition of complaint that OP No.1 was negligent at the time of treatment of the complainant when complainant was admitted at the nursing home of the OP No.2 on 26.12.2015 for the PHACO-EMULSIFICATION surgery of his right eye.

But when the complainant felt pain at his right eye then he reported the same before the OP No.1-3 but they did not take proper steps.

Complainant alleged in the petition of complaint that he got admission before OP No.2 on 26.12.2015 for the PHACO-EMULSIFICATION  surgery of his right eye  and he spent Rs.6,000/- for such surgery  before OP No.1. At the time aforesaid surgery he was feeling very much pain and OP No.1 did not take any care and asked the complainant to go back to

(4)

his home at 8:00 p.m. He came before OP No.1  on 29.12.2015 and on that time OP No.1 advised some medicines  and complainant after use of those medicines felt very much pain and redness in his right eye. After opening the bandage he did not see anything and become blind on his right eye. OP NO.1 in his W/V admitted that on 26.12.2015 complainant came before him for his right eye and after successful operation of his right eye, he was discharged on the same day  with some suggestions  and advised  of first review  after two days  but patient party did not turn back as per said advise. He came before him on 29.12.2015 with some problems and after check up OP NO.1 gave necessary treatment and considering  the condition of the right eye of the patient  referred him to higher centre  (RIO), MCH in Kolkata for necessary  and better treatment. But patient  went to higher centre  after 6 days  on 05.01.2015. OP No.1 as OPW1 corroborated his W/V on oath. He also stated in his affidavit in chief  that complainant  came before him on 29.12.2015 with complaint of pain, redness  and he found that patient was sufferings from  ENDOPHTHALMITIS and as immediate  measure INTRA-VITREAL ANTIBIOTICS and medicines  were given and he was advised to go to higher centre with  Medical College and Hospital  as urgent care. But complainant did not follow his advised.

 Let us see the discharge certificate issued by OP NO.1 & 2 at the time of discharge. We find that OP NO.1& 2 advised 4 medicines by mentioning  the tick mark in the printed medicines. They advised for first review on 29.12.2015 and second review on  29.02.2016.

On perusal of entry in the backside of  discharge summary, we find that complainant came before OP NO.1. OP NO.1 stated in his W/V and affidavit in chief that on that time he at first diagnosed that complainant was suffering from ENDOPHTHALMITIS and he gave INTRA-VITREAL ANTIBIOTIC.

But on perusal of said entry, we find that OP NO.1 did not make the note of his observation what he found  ENDOPHTHALMITIS after examining the complainant. OP No.1 stated in his affidavit in chief that complainant was suffering with   ENDOPHTHALMITIS but he did not note the same in his prescription. It was his moral duty to mention over the said prescription that complainant was suffering with ENDOPHTHALMITIS but he did make such note. He further stated in his affidavit in chief that he gave INTRA-VITREAL ANTIBIOTIC as an immediate measure but on perusal of the said prescription we do not find any such note. During hearing  of argument Ld. Adv. for the OP NO.1 failed  to give  any explanation as to why OP NO.1 did not note the  name of the disease  as ENDOPHTHALMITIS and name  of the medicine  which was given as a immediate measure namely INTRA-VITREAL ANTIBIOTIC. Accordingly, it is clear before this

(5)

Commission that the aforesaid statement of OP NO.1 that he diagnosed the problem as ENDOPHTHALMITIS and gave INTRA-VITREAL ANTIBIOTIC as immediate measures is remains a story.

In this situation, we have no other alternative but to presume that OP NO.1 did not diagnose properly and did not give appropriate medicine to the complainant on that moment.

OP NO.1 in his affidavit in chief and W/V further stated that complainant did not follow his advise which gave in his prescription dated 29.12.2015.

On perusal of cash memo (Xerox) regarding purchase of medicine, we find that OP NO.1 in his prescription advised medicine and complainant purchased the same eye on the same date that is on  29.12.2015. So it is clear before us that complainant followed the direction of the OP NO.1

OP NO.1 in his W/V and affidavit in chief further stated that he advised the complainant to go to Kolkata Medical College and Hospital immediately.  But complainant ignored his advised.

On perusal of prescription dated 29.12.2015, we find that OP NO.1 did not issue any such direction in his aforesaid prescription.

Accordingly, it is clear before us that aforesaid statement of OP No.1 is nothing but a story.

On perusal of treatment papers of RIO Kolkata Medical College and Hospital, we find that complainant went before them on 05.01.2016 for the first time, thereafter on 23.01.2016, 28.02.2016. He continued his treatment before them. PW1 stated in his  evidence  that even the aforesaid  treatment  in a continuous  period before  the RIO, Kolkata Medical College and Hospital  right eye  of the complainant  was totally damaged.

Let us see report of medical board which was formed by the CMOH, Nadia as per order no.2 dated 17.07.2017. We find that three doctors were the member of the said medical board. They stated that complainant presented himself on 29.12.2015 with complaint of redness, pain and dimness of vision in the right eye.  The accompanying  notes indicates that  he suffered from ENDOPHTHALMITIS in the right eye   INTRA-VITREAL vancomicin ceftazidome (this combination is the most appropriate  in the setting of bacterial ENDOPHTHALMITIS which is  likely to  be  the cause of post operative infection  on third  day of presentation  with pain and redness.) We have stated earlier that we did not find any such note in the prescription dated 29.12.2015. They further stated in their report that patient suffered from ENDOPHTHALMITIS on third post operative day. There is no reason to  believe  with concerned 

(6)

doctor and the nursing home did not take adequate  pre, per and post operative  care. They further stated that the treatment would have been better and completed after some PSYCHOLOPAGIC   was added. But curious   enough that they at the time of conclusion in the opinion stated that they personally believe that this is unfortunate incidence it is not speak of any significant negligence on part of treating doctors. They  in one place  stated that treatment  would have been better and complete if some PSYCHOLOPAGIC  was added but in another place they stated contesting  that there is no significant negligence, so we find that  the aforesaid report  bears with serious  of contradiction  which we do not expect  from the responsible  knowledgeable and expert person of the medical field.

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.

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.

A PSYCHOLOPAGIC refraction is not part of a standard eye exam process but when indicated can help ensured that eye doctor determines the best, clearest and most comfortable prescription. In the present case,

(7)

we find that the casual approach of OPW1 in post-operative period.

 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 not. In this aspect we find that Hon’ble Madras High Court in a decision reported in 2002 ACJ 954 held:-

“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

(8)

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.

Accordingly, we find that complainant has able to established his grievance by sufficient evidence beyond reasonable doubt and he is entitled to adequate compensation for his loss of vision on his right eye.

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 the ex-parte against the OP No.3 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) for aforesaid  negligence in favour of the complainant  within 45 days from this date.

(9)

OP No.1 & 2 jointly or severally are directed to pay Rs.1,00,000/- for cost of treatment  and medicine in favour of the complainant within 45 days from this date.

OP No.1 & 2 jointly or severally  are directed to  comply the aforesaid orders within 45 days from this date failing which complainant shall have liberty to put this order into execution and aforesaid  amounts shall carry interest  @ 9% per annum till the date of actual payment.

Let a copy of this final order be supplied to both the parties as free of costs.

Dictated & corrected by me

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

                PRESIDENT

(Shri   DAMAN PROSAD BISWAS,)        ..................... ..........................................

                                                                                            PRESIDENT

                                                                        (Shri   DAMAN PROSAD BISWAS,)

We  concur,

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

          MEMBER                                                                                       MEMBER

   (NIROD  BARAN   ROY  CHOWDHURY)                         (MALLIKA SAMADDAR)