Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.317/11.12.2012
Yashpal Bahri (since deceased) through his LRs-
(i). Mrs. Nirmala Devi, w/o Mr. Yeshpal Bahri,
r/o Flat no. 246-A, DDA, Janta Flat, Ghazipur,
East Delhi District, Delhi-96.
(ii). Mr. Rakesh, s/o Late Yashpal Bahri,
r/o F-210, Ram Nagar, Delhi-110055.
(iii). Mr. Ravinder, s/o Late Yashpal Bahri,,
r/o Parwana Road, Jagatpuri Part-I, Delhi-110091.
(iv). Mrs. Manuj Grovwer w/o Mr. Satish Grover,
r/o House No. 17260, Gali No. 1, Agarwal Colony,
Bhatinda, Punjab.
(v). Mrs. Nisha Dhang w/o Mr. Suinder Dhang,
r/o Jessy Hospital Colony, Faisalka, Punjab. …Complainant
Versus
M/s Dr. Shroff’s Charity Eye Hospital,
5027, Kedarnath Road, near Golcha Cinema,
Darya Ganj, New Delhi-110002 ...Opposite Party
Date of filing: 11.12.2012
Date of Order: 16.11.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – The complainant has grievances of medical negligence, deficiency of service and of unfair trade practice against the OP, besides that the name of OP is Charity Eye Hospital but it charges the fees for rendering services. Complainant’s left eye was to be operated for cataract (white membrane, सफ़ेद मोतिया) but the OP had operated for eye ball membrane [काला मोतिया], he lost his vision of that eye and it could not be restored. He had to take services of other hospital. That is why, the complaint to direct the OP to pay of Rs. 25,000/- of actual expenses incurred towards operation, medicine, special diet, consultation, conveyance, accessory, incidental expenses besides compensation of Rs. 1,00,000/- and litigation cost of Rs. 15,000/-. The complainant further seeks direction of warning of adoption of unfair, restrictive trade practices besides heavy penalty.
1.2. The OP opposed the complaint that neither there is any deficiency of services nor any medical negligence nor it is liable for any amount, as the complainant was diagnosed properly and he was given appropriate treatment warranted within the protocols. The operation was with the free consent of complainant. The OP charges subsidized rate from general patient and for helpless patient, the provision of charity is open.
1.3. When this case was pending at the stage of final hearing, the complainant Yashpal Bahri expired, his legal representatives were brought by order dated 21.11.2017, which have been shown in the array of parties.
1.4. The complaint is in minute detail under different headings to introduce about the complainant, the OP and other narrations, therefore, the care is being taken to mention material and relevant facts and features in order to decide the controversy involved.
2.1. (Case of complainant) –The complainant was having problem in right eye vision for the last 20 years and in the beginning, he was taking treatment from Maharaja Agrsen Hospital, Sadar Bazar Delhi since he was living at Visvas Nagar. Later he was shifted his residence to Gazipur, Delhi and then he started taking treatment from Bajaj Hospital, Durgapuri Chowk, Shadhra, Delhi. It was disease of cataract or ratina membrane opaqueness and in order to have restoration of eye sight to normal position from different diffusion, the treatment was being taken. The doctors of these hospitals were of opinion against the operating right eyes as it may cause harm to the dim eye sight of the right eyes.
2.2. The complainant had weak eye sight problem of his left eye about 3 or 4 months prior to approaching the OP. The doctors had advised the complainant to undergo operation of his left eye, for white membrane [सफ़ेद मोतिया] and try his luck and they had also advised the complainant against operation of eye ball membrane [काला मोतिया], however, the expenses for operation in Bajaj Hospital were very high, the complainant could not afford it because of his age about 78 years and he was also not working or having earnings. In order to seek help, the complainant came to know about OP being a charitable hospital and also conducting operation at comparatively very less expenses.
The doctors at hospital of OP were provided all information, medical history, the record as well as the advises given to the complainant by the doctors of previous hospitals, which annoyed the doctors of OP on hearing such advices. The OP's doctors rather advised to undergo eye operation at the earliest, while assuring complete recovery from the disease. The complainant was asked to deposit Rs. 10,000/- as expenses towards the operation despite it is a charitable Institute, however, after persuasions an amount of Rs. 9,000/- was got deposited from him and a slip of Rs. 9,000/- was issued, the date of 11.12.2011 was fixed for operation (the complainant has repeated this date 11.12.2011 at many places, whereas the date of operation is 19.10.2011 as per OP & record filed; this date of 19.10.2011 was also conceded by the complainant in his replication). The operation was performed on the scheduled date.
2.3. The OP had performed surgery of black eye ball [काला मोतिया], instead of white eye ball [सफ़ेद मोतिया] without willful consent and knowledge of the complainant. The complainant took rest for 2-3 days after surgery as advised but on review, it was observed that blood had spread in the eyes of complainant, it was because of poor quality and poor standard of operation. There was deficiency in professional knowledge and skill besides negligence of health and safety care on the part of OP. The doctor further advised immediate treatment failing which there may be infection resulting in deterioration of already weak eye sight or even permanent loss of eye sight. The complainant was asked to deposit another amount of Rs. 5,000/- but it shocked and caused him tension. He was unable to arrange & deposit Rs. 5,000/-; even earlier amount of Rs. 9,000/- was arranged by selling gold ornament of his wife. He was surviving on the pension having no other support nor he was sound financially. Then OP refused to provide further medical attention and treatment.
However, the complainant could not take risk. He along-with his wife and son again visited the hospital of OP to find out the solution for restoration of eye vision, since the complainant was not blind prior to surgery but having dim vision. However, after surgery all problems had arisen, even for routine tasks of change of dress, support to go to bathroom and toilet, to have meal or read newspaper. There was gross medical error and lapses on the part of doctors of OP, who carried the operation.
2.4. During period of March 2012, the OP inquired from complainant about status of his treatment, then he apprised them of his treatment from Guru Teg Bhadur Hospital (GTB), Dilsad Garden Delhi and after hearing this, the OP immediately gave 17.03.2012 as date of appointment and further appointment of 16.06.2012, 27.06.2012 and 27.08.2012, whereas earlier he was not being entertained. On 27.08.2012, the OP also issued discharge summary with instructions in Hindi, however, the complainant was not advised any further date for review.
The complaint also narrates the other details mentioned in the medical record that those terminology could be explained appropriately by the concern in the medical field. However, the doctors at GTB Hospital clearly explained to the complainant the consequence or risk of giving intravitreal avastin injection and took his consent in writing, then injection was administered on 07.03.2012, 31.04.2012 and on other dates, the complainant continued treatment of GTB Hospital.
Subsequently on 27.08.2012 the complainant requested OP about the deficiency and negligence in the services, because of which he had lost a lot and he asked the OP to return amount of Rs. 25,000/- spent but no result. The complainant had no other option but to issue legal notice, which was served on OP on 23.07.2012 but it was responded out of imagination and without any substance. That is why the complaint, which is within the limitation period and it is also filed in the competent jurisdiction.
2.5. The complainant seeks refund of amount of Rs. 25,000/- of expenses incurred, Rs. 1,00,000/- as compensation, Rs. 15,000/- as costs besides restrained order as well as returned of the previous documents given to the OP. The complaint is accompanied with the documents as mentioned in the index, which also includes appointment/ consultation slip, discharge summary, diagnosis given, copy of legal notice, its reply dated 07.08.2012 to the legal notice and its rejoinder dated 14.08.2012.
3.1 (Case of OP)- The OP opposed the complaint by replying it under headings of preliminary objection and reply on merits with the support of case law besides by describing the facts and features in chronology. Simply, neither there is any medical negligence of OP nor deficiency in services or of restrictive or unfair trade practices. The OP has qualified and expert surgeons, doctors, paramedical staff besides adoption of scientific tools and protocol The surgery was with, and after, the consent of complainant. The complainant is not entitled for any of the relief being claimed.
3.2. On 22.09.2011, the left eye of complainant was diagnosed as advance brown cataract with advanced POAG. He was already on anti-glaucoma drop for advance glaucoma in left eye. The complainant/patient was advised and he agreed subsequently for surgery - for cataract and glaucoma and it was gone on 19.10.2011. On 21.01.2012 his vision was recorded as 06/24 with evidence of CME, the complainant was advised intravitreal injection of avastin, which was also consented by the complainant but subsequently he refused it. On 12.02.2012 he visited the GTB Hospital, where similar injection of avastin was advised and it was also given to him on 07.03.2012 at GTB Hospital, Delhi.
But on 16.06.012 the complainant again came back to OP. He admitted that he was given intravitreal injection of avastin at GTB Hospital, but he refused to have review on 27.07.2012 for further treatment of OP. On 12.09.2012 the complainant developed CRVO in his left eye as diagnosed by GTB Hospital and his vision dropped PL (+).
3.3. The circumstances of treatment are abundantly clear that the case of complainant was of advance POAG and he was advised cataract + glaucoma for which general consent was given on 22.09.2011 and thereafter requisite tests were carried inclusive of pre-surgical requirements and finally on 19.10.2011 PI-OCL was performed. The OP, its surgeon, doctor and paramedical staff have requisite qualification and expertise for and adoption of scientific protocol. The consent form for surgery was out of free consent of the complainant. The subsidized surgery amount was Rs.11,500/- and at request of complainant it was reduced to Rs. 9,000/- and the surgery was performed with the consent of complainant. After surgery the complainant was diagnosed with macular. The complainant had refused intravitreal injection of avastin prescribed by OP in January 2012 but the complainant took the opinion of GTB Hospital on 22.02.2012, who opined same injection and complainant got it administered on 07.03.2012 on the advices of Dr. Rajat of that GTB hospital.
On the other side, there is nothing in the complaint or in the record to cull out medical negligence or of deficiency of service against the OP (OP refers Jacob Mathew vs State of Punjab 2005 6 SCC 1, that onus to prove negligence is on complainant but no expert evidence is produced in support of allegations). The complaint is liable to be dismissed for want of expert opinion (reliance is placed on Vinitha Ashok vs Lakshmi Hospital and Anr. 2002 (1) CPJ 4, there are three elements to constitute negligence namely duty, breach and resulting damages and as per the facts of the case, the complainant was prescription to continue the treatment, which was also similarly prescribed by GTB Hospital subsequently.
3.4. The OP also denies other allegation of the complaint being inconsistent, wrong and false. The OP also explains the allegations of deposit of amount of Rs.5,000/- that as per record, the amount of Rs. 5,000/- was negotiated by the complainant and it was reduced to Rs. 2,000/-, however, complainant refused further treatment of OP at his own discretion. The complaint does not spell out a case of medical negligence or of deficiency in service, the complaint deserves dismissal.
4. (Replication of complainant) – The complainant files detailed replication dealing with all the material of reply of OP as well as the complaint. The complainant reaffirms the complaint correct and also highlights the complaint as reply to the plea of OP.
5.1. (Evidence)- Complainant Sh. Yashpal Bahri (during his life time) filed his detailed affidavit of evidence, with the support of the documents filed with complaint. It is replica of the complaint.
5.2. The OP also led its evidence by filing detailed affidavit of Sh. Arun K. Arora, Chief Executive of OP, who also authored the written statement, and it is also reproduction of written statement.
5.3. The complainant had filed an application for expert opinion of Lal Bhadur Shashtri Hospital and by order dated 10.12.2015, it was permitted for the expert opinion sought for. On 27.07.2016 brief opinion was received, which is matter of the record.
6.1 (Final hearing)- The complainant and the OP have filed their written arguments, which are on the pattern of their pleading and also hybrid of evidence. The same is not required to be repeated here, as the same will be considered and assessed while dealing with the rival contentions.
6.2. The parties were also given opportunity to make oral submission, however, none appeared for LRs of the complainant but Sh. Naresh Pawar, Advocate for OP made oral submissions. Since the written arguments of complainant is on record, the same are being considered.
7.1 (Findings)- The cases of both the sides are considered, keeping in view the facts, features and the record in the form of oral narration as well as documentary evidence besides statutory provisions of law and precedent/ case law presented. By considering the issues involved and to appreciate the rival plea , it is appropriate to refer certain terminology, some of them are –
*Glaucoma - In most cases, glaucoma is caused by increased pressure in the eye, in healthy eye a balance exists between the fluid produced and the fluid that leaves the eye.
*POAG [advanced primary open angle glaucoma] - OPAG occurs when the drainage channels are open, but do not drain fluid properly.
*Advanced POAG [advanced primary open angle glaucoma] - The third stage of glaucoma can be officially characterised as the advanced stage.
Its treatment can be eye drops, laser (selective trabeculoplasty) but surgery most commonly trabeculectomy. This surgery involves making a small hole in the eye to let fluid drain more easily. The damage caused by glaucoma cannot be reversed but regular treatment helps to slow or prevent vision loss, especially if patient catch the disease in its early stages.
*Cataracts - A cataract is when eye's natural lens becomes cloudy, protein in the lens break-down and cause the things to look blurry, hazy or less colorful.
The cataract is removed with small instrument and the lens implant is inserted (commonly it is PC IOL). This implant remains in position and will restore distance and near vision if a PCIOL is inserted.
* Glaucoma and Cataracts - Glaucoma and Cataracts affects two different area of the eyes. Glaucoma involves eye pressure and affects the optic nerve and cataracts involves the breakdown of proteins and affects the lens.
*Cystoid Macular Edema [CME] - A common complication after cataract surgery is CME. After cataract surgery there are varying degrees of inflammation in the eyes. This inflammation is usually controlled by using steroid eye drops for several weeks.
*Posterior Chamber Intraocular Lenses [PC IOL] also known as Sulcus Supported Intraocular lenses (IOL) consist of securing the IOL in the cillary sulcus and is replacement for natural crystalline lens.
7.2 With this introduction, now issues are being taken.
7.3. The complainant has strong reservation that consent form was got signed from him for cataract surgery but surgery of glaucoma was performed, for which he had not consented. On the other side, the OP has reservations that surgery was performed as per protocols and it was for both cataract and glaucoma, for which consent was given by the complainant.
As per record the date of surgery is 19.10.2011, however, the consent form is of 22.09.2011, which is much prior to the date of surgery. After general consent on the form, ( for the surgery was for left eyes for cataract and glaucoma), the other pre-surgical tests were commenced for appropriate surgery on 19.10.2011. Had the complainant not consented for surgery, there was no reason for the complainant to go for surgery since the consent form was of 22.09.2011 and he could have withdrew the consent by not reporting for the surgery. The circumstances of consent form followed by pre-surgery test and then surgery on 19.10.2011 are in sequence which proves that consent was given by the complainant voluntarily. This contention of complainant is disposed of against him.
7.4. The complainant has also objection that he had gone for left eye cataract surgery since the treating doctors of earlier hospital had advised not to go for glaucoma surgery but the OP has reservation that the complainant had consented for cataract and glaucoma surgery for left eye.
It is apparent that the case of complainant was diagnosed of advanced POAG and the surgery performed was both for cataract as well as POAG. Since, Glaucoma and Cataracts affects two different area of the eyes. Glaucoma involves eye pressure and affects the optic nerve and cataract involves the breakdown of proteins and affects the lens. The complainant was aged about 78 years and there was already general consent for cataract and glaucoma and the OP had performed surgery, which is also recorded in the cataract surgery operating notes. As appearing, the complainant is referring heading of the 'operative notes of cataract surgery' but as a matter of fact both cataract + glaucoma surgery was performed on 19.10.2011. When the complainant himself given consent for cataract and glaucoma since he was suffering from advance POAG and thereafter surgery was performed, the complainant would not derive any benefit nor he can say that he had given consent for 'cataract surgery exclusively' but surgery of glaucoma was performed; as per medical record of contemporary period, the surgery was for both cataract + glaucoma. This contention is also disposed off against the complainant for want of proof of allegations in this regard.
7.5. After surgery, the complainant reported to the OP for review and scar/ macular was found and according to the complainant, it was because of negligence on the part of OP. Whereas according to OP, the scar was found, which may happen to the individual case after surgery but there was no negligence or deficiency of services on the part of OP. The complainant was prescribed intravitreal injection of avastin but complainant refused to take that treatment and he went to GTB Hospital, where similar injection was prescribed and administered by GTB Hospital.
The cause of CME is already defined, which may happen post surgery, however, there is also treatment to cope with the same. It is undisputed fact that the OP had prescribed intravitreal injection of avastin and lateron the complainant went to GTB Hospital, where he was also prescribed intravitreal injection of avastin. It infers and proves that there was same treatment prescribed by the doctors of OP as well as by the doctors of GTB Hospital, when complainant refused to continue his treatment at OP. Moreover, there is no documentary record proved by the complainant to infer that during his treatment at GTB Hospital, there was any finding to the effect that there was any negligence in surgery or for further treatment rendered or advised to the complainant by OP. Therefore, it does not cull out any negligence on the part of OP, it is also appearing that standard operating procedure was followed by the OP. The complainant was required to prove that there was other treatment to be given but it was not given by OP. It has also not been proved
7.6. There is also expert opinion dated 27.07.2016 by L B S Hospital and no negligence was suggested because patient was not given wrong treatment.
7.7. In view of above when case of negligence or deficiency of services or unfair trade practice has not been proved, there is no scope for any restrain order to be passed.
7.8. The complainant also seeks relief for return of documents, however, the complainant could not prove as to what documents are being sought from the OP vis-à-vis the legal notice also does not narrate deposit of documents or return of any documents. Therefore, the complainant also could not prove this fact.
8. So, it is held that the complaint could not have been proved by the complainant. The complaint fails. The complaint is dismissed. No order as to cost.
9. Announced on this 16th November 2023 [कार्तिक 25, साका 1945].
10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Shahina] [Inder Jeet Singh]
Member (Female) President
