Haryana

Ambala

CC/65/2022

Sukhmal Chand - Complainant(s)

Versus

Dr. Veena Chaudhary Foundation Eye Hospital - Opp.Party(s)

04 Mar 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	65 of 2022
Date of Institution	:	09.03.2022
Date of decision	:	04.03.2024

Sukhmal Chand aged about 66 years s/o Shri Bachna Ram, R/o Village Ugala, Tehsil Barara, District Ambala.    

          ……. Complainant.

Versus

1. Dr. Veena Chaudhary, Foundation Eye Hospital, Sikh Fort Road, Near Khalsa Sarbat Bhawan, Shahabad Markanda, District Kurukshetra (Haryana) (Mb.No. 77110-77330).

 

2. Dr. Prabhula Kumar Manjhi, Advanced Eye Care Hospital, Near Maharana Pratab Chowk, Barara, District Ambala (Mb.No.96716-13469).

 

3. National Insurance Company Limited, Mumbai, DA Branch X- Rajeshwar Bhawan, First Floor, Above Canara Bank, 51, Ranade Road, Dadar West, Mumbai-400028, service to be effected by National Insurance Company Limited, Branch Office situated near Head Post Office-Ambala City, through its' Branch Manager/Authorized Signatory.

….….  Opposite parties.

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Ms. Kulwant Kaur, Advocate, counsel for the complainant.

                             Shri Satinder Singh Garg, Advocate, counsel for the OPs No.1 & 2.

                   Shri Mohinder Bindal, Advocate, counsel for OP No.3.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay compensation to the tune of Rs.10 lacs for medical negligence, dishonest and malafide act and conduct of the OPs and causing mental agony and physical harassment to the complainant.
2. To pay approximately Rs.50,000/- spent on the treatment for left operated eye including subsequent treatment of the complainant;
3. To pay interest @ 18% per annum on the actual amount spent by the complainant for the operation of the left eye and the subsequent treatment, etc. from the date of operation i.e. 28.11.2021, till the date of payment.
4.  To pay cost of litigation to the tune of Rs.25,000/-.
5. Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that a cataract developed in the left eye of the complainant and he became unable to see the things clearly and properly. In  order to recover the light of his eye-sight, he contacted the OP No.1-Dr.Veena Chaudhary, at her hospital known as Foundation Eye Hospital, Shahabad Markanda. OP No.1 carefully checked the left eye of the complainant and after thorough checking, she advised the complainant for getting early operation of his left eye done to avoid infection in his other eye. The doctor further advised that it is fit time for conducting operation and after operation; he will be able to see the things and do the work properly. Accordingly the complainant was called for operation on 28.11.2021. On 28.11.2021, the complainant visited the hospital of OP No.1; where his left eye was operated by OP No.2-Dr.Prabhula Kumar Manjhi-the Eye Surgeon in the presence and supervision of OP No.1. After conducting the operation, the complainant was kept under observation for some hours and thereafter he was discharged on the same day and the complainant was called on very next day for checking of eye-sight of his left operated eye. OP No.1 charged Rs.4,000/- as package for the operation from the complainant on 28.11.2021 vide receipt No.1025 and Rs.2,000/- were spent by the complainant for the medicines prescribed by the doctors and transportation. On 29.11.2021, the complainant approached the hospital of OP No.1; as per the instructions of the doctors; where the light of left eye was checked; but the complainant was totally unable to see anything; as there was no light in his left eye. OP No.1, who checked the light of the eye was also perturbed and she advised the complainant to approach OP No.2 at his eye hospital at Barara; as he conducted the operation in the presence and guidance as well as control of the OP No.1. Accordingly on 30.11.2021, the complainant went to OP No.2 at Advanced Eye Care Hospital, Barara. Dr.Prabhula Manjhi checked the eye of the complainant and gave some prescription for purchasing the medicines and also assured that he will get the proper light after the treatment. The complainant purchased the medicines and consumed the same; but there was no improvement in the eye-sight of his left eye; rather the complainant started feeling pain in his left eye; thus he again approached OP No.2 on 01.12.2021 with the complaint of having severe pain in his left eye, where Doctor Prabhula Manjhi again checked the eye of the complainant and found a wound developed in his left eye; but he failed to disclose anything to the complainant. However, the complainant was directed to approach OP No.1. On 01.12.2021, on the very same day, the complainant approached OP No.1 with the same complaint of having pain. After seeing the prescription of OP No.2 advised the complainant to take the medicines as per instructions and assured that his left eye sight will be recovered. However, he further advised the complainant that if after consuming the medicines, there is no improvement, he may approach PGI Chandigarh. Then as per advice of the OPs, the complainant consumed the medicines; but there was no recovery; rather he was suffering from unbearable pain. On 03.12.2021, the complainant went to PGI, Chandigarh; where he remained admitted from 03.12.2021 to 05.12.2021; but he was shocked to know that his left eye has been damaged due to medical negligence of the doctors, who operated the eye. The doctor of the PGI has clearly told that the operation performed by OPs No.1 and 2 has failed and there is no possibility of recovery of the sight of the left eye of the complainant and the complainant has lost the sight of the left eye due to the negligence and carelessness of the OPs. The complainant has been deprived from the light of his left eye permanently and he has become blind from his left eye; which has caused mental shock and agony for the complainant and now the complainant is forced to live the such disability caused at the hands of the OPs. The OPs have totally failed to take reasonable care while conducting the operation of left eye of the complainant and it seems that the doctors had conducted the operation in hurry out of greed. The complainant is regularly approaching PGI, Chandigarh for the treatment of his operated eye, which is damaged due to the medical negligence of the OPs and his treatment is continuous. The complainant is a simple poor person, resident of Village Ugala (Ambala), which is far away from PGI and he was in his own vehicle was visiting the PGI regularly for treatment, as such, he was burdened with unnecessary expenses. The complainant has spent Rs.50,000/-by now for the treatment of his left eye, which includes medicines and transportation; besides the loss of his income. Moreover, the complainant has the liability of his family members consisting of 06 members of the house and the complainant is working as a labourer. After the operation of left eye, complainant is unable to do any work and he has been constrained to live in the house. The complainant also served a Registered Legal Notice dated 13.12.2021 to the OPs , which was duly received by them but to no avail.  The complainant at the instance of OP No.1 through his application dated 18.05.2022 came to know that the OP No.1 is insured with the National Insurance Company Limited and having its' Policy No.240401492110000021 and it covers the risk of liability caused by the doctor, if any, which may arise if they are held liable for medical negligence by any Competent Court/commission/Forum etc. by taking the Professional Indemnity Insurance Policy from the Insurance Company. Hence, the present complaint.
3.           Upon notice, OPs No.1 and 2 appeared and filed written version wherein they raised preliminary objections to the effect that  the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law as the same has been cooked up and has been filed without justified reason/cause against the OP No.1 and OP No.2; no specific, scientific and justified allegations in regard to negligence or deficiency in providing services have been made by the complainant against the OP No.1 and OP No.2, and the complainant has totally failed to explain as to how the OP No.1 and OP No.2 were negligent; Law does not require professionals to give guarantee or warranty with respect to the end results of the services rendered by them. What law requires is that the services rendered must not be sub-standard or below par and the services rendered must be without any shortcomings; the Supreme Court in Jacob Mathew vs. State of Punjab (2005) 6 SSC 1], held 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 invariably 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 practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, the professional may be held liable for negligence on one of 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 has been 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. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence". In the instant case OP No.2 treated the patient diligently with due care and skill. Thus, there was no negligence or deficiency in services provided by OP No. 1 and OP No.2. On merits, it has been stated that OP No.1, Dr. Veena Chaudhary Foundation Eye Hospital is a well-equipped hospital, and is committed to provide its patients with quality healthcare services at competitive prices. OP No.2, Dr.Praphulla Kumar Manjhi is a qualified and well experienced Eye Surgeon and is duly registered with the Haryana Medical Council. OP No.2 has a clean and spotless professional career/track record and has been keeping himself updated in the professional skills and knowledge through various conferences and programs.   The present complaint is not supported by any EXPERT MEDICAL WITNESS on behalf of the complainant. The Hon’ble National Consumer Disputes Redressal Commission has clearly envisaged in its judgment in Dr. Harkanwaljit Singh Saini v. Gurbax Singh and Anr. 2003;(1) CPJ 153 (NC) that, "The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of an expert opinion or there is any medical treatise on which reliance could be based".
4.           On 28.11.2021, the complainant visited OP No.1 hospital with complaint of dimness of vision in his left eye. His loss of vision was gradual, progressive and painless. On examination his Visual Acuity was 6/9 in Right Eye and Hand Movement close to face in Left Eye. He was diagnosed as Right Eye: Pseudophakia and Left Eye: Advance IMSC (Immature senile cataract). He was advised for Left Cataract surgery under local anesthesia.  All routine investigations were done which were within normal limits. The patient was explained about the risk of complications associated with the surgery and the surgery was performed after taking consent from the patient. On 28.11.2021, surgery for Left Eye (Phacoemulsification & IOL implantation) was performed successfully by OP No.2. Surgery was successful and there was no complication. Patient was observed after surgery and there was no pain, redness or uneasiness in the operated eye. Patient was discharged on 28.11.2021 in satisfactory condition along with prescription of medicines and was instructed to come for follow up next day. The patient was instructed to follow the post-operative instructions i.e. not to touch or rub the operated eye with hand or cloth, and to take medicines as per instructions. The patient came on 29.11.2021 for follow up and was examined by OP No.2. On examination there was no complication in the operated eye and visual acuity in Left Eye was 6/12. He was prescribed medicines and advised to follow up after 1 week or urgently if there is pain or redness.  He visited the clinic of OP No.2 on 30.11.2021 with complain of pain and diminution of vision in left Eye. The Patient was immediately examined by OP No.2 and it was found that the operated eye has started showing signs of infection. The patient was explained about the disease and its management. The patient was immediately given Intravitreal injection Vancomycin 1 mg, and Inj. Ceftazidime 2.25 mg. and was instructed to come for follow up on next day i.e. 1.12.2021 and was also informed that if there is no improvement then he will have to immediately go to PGI, Chandigarh for further management. The patient visited the OP No.2 on 1.12.2021 and on examination there was no improvement and thus the patient was emphatically instructed to immediately go to PGI Chandigarh for further management. Instead of going directly to PGI the patient went to OP No.1 hospital. At OP No.1 hospital also, the complainant was told to immediately rush to the PGI. After that the patient never visited for further management. As per record the patient visited the PGI on 3.12.2021 and thus he negligently wasted time due to which the condition of his operated eye further deteriorated. Rest of the averments of the complainant were denied by the OPs No.1 and 2 and prayed for dismissal of the present complaint with exemplary costs.
5.           Upon notice, OP No.3 appeared and filed written version wherein it raised preliminary objections to the effect that complaint is not maintainable; this Commission has no jurisdiction to entertain and try the present complaint as the dispute involves the determination of complex and number of complicated issues, laws and facts that cannot be decided in the absence of expert and huge evidence, as such only the civil court has jurisdiction in the matter;  the present complaint is not supported by any expert report or opinion to prove any negligence being caused in the alleged treatment of the complainant on the part of the treating doctor; the complainant is not entitled for any relief as he has not approached this Commission with clean hands and suppressed true and real facts; the present claim petition is ex-facie misconceived, vexatious, untenable and devoid of any merit; the complainant has approached this Commission with sole motive to make fortune and has made this complaint in order to raise a premeditated, false and frivolous dispute; that  no court fee is payable for the Institution of case under the C P Act etc. On merits, it has been stated that OP No.3 denies the liability under the alleged insurance policy according to alleged allegations of treatment given to the complainant. However, the liability, if any, is strictly subject to terms and conditions of the insurance policy in question. OP No.3 accepts the written version filed by the OP No.1 and with regard to the alleged treatment only provided to the complainant and the same be read on its behalf. Rest of the averments of the complainant were denied by OP No.3 and prayed for dismissal of the present complaint with special costs.
6.           Learned counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-30 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OPs No.1 and 2 tendered affidavit of Mr. K.P. Aggarwal, Authorized Signatory/Owner/Director of Dr.Veena Chaudhary Foundation Eye Hospital, Sikh Fort Road, Near Khalsa Sarbat Bhawan, Shahbad Markanda, District Kurukshetra and affidavit of Dr. Prafulla Kumar Manjhi, Advanced Eye Care Hospital, son of Mr. Radha Charan Manjhi, C/o Near Maharana Partap Chowk, Barara, District Ambala as Annexure RW1/A and RW2/A respectively alongwith documents Annexure R-W1/1, RW1/2, RW-2/1 to RW2/3 and closed the evidence on behalf of OPs No.1 and 2. Learned counsel for the OP No.3 tendered affidavit of Richhpal Singh, Authorized Signatory, National Insurance Company Limited, Branch Office, Ambala City as Annexure RW3/A alongwith document Annexure R-1 and closed the evidence on behalf of OP No.3.
7.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
8.           Learned counsel for the complainant submitted that OPs No.1 and 2 were negligent in conducting surgery of left eye of the complaint, which resulted into loss of his vision, therefore, the OPs No.1 and 2 being doctors and OP No.3 being the insurer of OP No.1 are thus liable to compensate the complainant for the loss of vision of the left eye. In support of his contention, the learned counsel for the complainant has placed reliance upon the judgments rendered by Hon’ble National Commission, New Delhi in the case of H.S.Sharma Vs. Inderprastha Apollo Hospital and Another, 2007 (2) CLT and Jawarharlal Institute for Postgraduate Medical Education and Research (JIPMER) Versus S.Varrery Srinivas 2012 (4) CLT and D.D.Trikha Vs. Devinder Mahant and Others 2003 (1) CLT.
9.           On the contrary, the learned counsel for the OPs No.1 and 2 submitted that the complainant was discharged on 28.11.2021 in satisfactory condition along with prescription of medicines and was instructed to come for follow up next day and was instructed to follow the post-operative instructions i.e., not to touch or rub the operated eye with hand or cloth, and to take medicines as per instructions. He further submitted that the patient came on 29.11.2021 for follow up visit and was examined by OP No.2. On examination there was no complication in the operated eye and visual acuity in Left Eye was 6/12. He further submitted that the patient visited the clinic of OP No.2 on 30.11.2021 with complain of pain and diminution of vision in left Eye and was immediately examined by OP No.2 and it was found that the operated eye has started showing signs of infection i.e ‘Endophthalmitis’. He further submitted that the patient was immediately given Intravitreal injection Vancomycin 1 mg, and Inj. Ceftazidime 2.25 mg. and was instructed to come for follow next day i.e. on 1.12.2021 and was also informed that if there is no improvement then he will have to immediately go PGI for further management. He further submitted that the patient visited the OP No.2 on 1.12.2021 and on examination it was found that there was no improvement and thus the patient was emphatically instructed to immediately go to PGI Chandigarh, for further management. Instead of going directly to PGI, the patient went to OP No.1 hospital. It was told to the complainant to immediately rush to the PGI without wasting any time, but he failed to do so. In support of his contention, the learned counsel for the Ops has placed reliance on the judgment dated 17.07.2013 passed by the Hon’ble National Commission, New Delhi, in the case of Shyam Lal Ladia Vs. Dr. O.P.Nayak Opthalmologist and Another and also produced the medical literature which is marked as “A”.  
10.           Learned counsel for OP No.3 submitted that the liability, if any, is strictly subject to terms and conditions of the insurance policy in question.
11.           Admittedly, on 28.11.2021, cataract surgery of the left eye of the complainant was done by the OPs No.1 and 2. As per the complainant, on the next day of operation i.e 29.11.2021, he went to the OP No.1 hospital and on check-up and it was found that he was unable to see from his left eye. It is own case of the OP No.1 and 2 that on 30.11.2021, when the complainant reported with the complaint of pain and diminution of vision in left eye, it was found that the operated eye has started showing signs of infection (Endophthalmitis) and he was given treatment and also informed him that in case there is no improvement, he has to visit PGI Chandigarh for further management. It is also stated by the OP No.1 and 2 that on 01.12.2021, on examination, no improvement was found, the complainant was asked to go to PGI Chandigarh, immediately, but he visited the PGI, Chandigarh on 03.02.2021, as a result of which condition of his left eye further deteriorated. Thus, from the admission itself, it has been proved on record that Endophthalmitis infection was caused in the left eye of the complainant after surgery. From the perusal of medical literature (Mark-A), it is evident that Endophthalmitis infection, after cataract surgery do occur. Even with the most careful pre-operative and intra-operative technique, Endophthalmitis will not be eradicated. The dictum of “diagnose early and treat early” applies here. Since, in the written version, it is stated by OPs No.1 and 2 that their hospital is well-equipped hospital to provide quality health services because they have qualified and well experienced eye Surgeons, therefore, they should have taken care of the complainant after operation and treated the infection caused to the left eye of the complainant carefully. When the infection in the left eye of the complainant was so severe then the OPs No.1 and 2 should have referred the complainant immediately to the PGI, Chandigarh by providing ambulance on the same very day i.e 30.11.2021 or 01.12.2021 to take him to the PGI in emergency situations, but they did not do so.
12.           It may be stated here that in the case of H.S.Sharma Vs. Inderprastha Apollo Hospital and Another (supra), decided on 01.02.2007, it has been held by the Hon’ble National Commission that Post Surgical fungal endophthlmitis occurring 2 to 3 weeks after the surgery is a clear possibility- Important for the opthalmologist to be aware of this and treat it carefully - OP failed to treat complainant when the complainant informed him of hazy and blurred vision-Post operative required care was not taken, hence OPs were deficient in providing service. In the case of Shyam Lal Ladia Vs. Dr. O.P.Nayak Opthalmologist and Another (Supra), decided on 17.07.2013, The Hon’ble National Consumer Commission has held that the endophthlmitis is known complication of cataract surgery. The problem is general and it is not the surgeon who is to be blamed although he is responsible for surgery. The OPs acted as per standards of practice and there was no negligence or deficiency in service. In both the aforesaid cases facts are identical and related to post surgical fungal Endophthalmitis, but different view has been taken by the co-equal benches of Hon’ble National Commission, New Delhi. It is significant to mention here that in the case of National Insurance Company Limited Vs. Pranay Sethi (2017) 16 SCC, 6805, it was held by the Hon’ble Supreme Court that in any case, when faced with conflicting judgments by the Bench of equal strength of the Court then it is the earlier one which is to be followed by the Subordinate Courts, if the contrary decision is given without reference to the earlier decision. Since, in the case of Shyam Lal Ladia Vs. Dr. O.P.Nayak Opthalmologist and Another, the order dated 17.07.2013, was passed by the Hon’ble National Commission, without referring the earlier order dated 01.02.2007 passed by the another Bench of the Hon’ble National Commission in the case of H.S. Sharma Vs Indraprashta Apollo Hospital and another, (Supra), therefore, in view of the law laid down by the Hon’ble Supreme court of India, in National Insurance Company Limited Vs. Pranay Sethi, (supra), this commission by placing reliance upon the judgment dated 01.02.2007, passed by the Hon’ble National Commission, in the case of H.S. Sharma Vs Indraprashta Apollo Hospital and another, (Supra), is holding that OPs No.1 and 2 are guilty of negligence as post operation required care was not taken by them and are thus liable to compensate the complainant. Our view is duly supported by the judgment dated 01.02.2007 rendered by the Hon’ble National Commission, New Delhi, in the case of H.S. Sharma Vs Indraprashta Apollo Hospital and another, (Supra) , wherein it has been held as under:-

 

• 45. We reiterate that post-operative treatment is also important in surgery of any kind. After operation also, surgeons are expected to devote some time for the operated patients and have regular check up, if required on holidays also, as that is part and parcel of their duty, being member of the noble profession dealing with the life and health of the patient. 46. In the result, we hold that even though the operation was successful, but at the same time, post-operative required care was not taken and for this deficiency in service complainant is entitled to receive compensation. ……….” 

 

13.          Although the loss of the eye sight of the left eye of the complainant which is caused due to sheer negligence of doctors cannot be restored, yet relief can be given to him by granting appropriate compensation. Keeping in view the peculiar facts and circumstances of the case, we are of the opinion that ends of justice would be met if OPs No.1 and 2 be directed to pay an amount of Rs.3,00,000/-, as compensation in addition to the payment of the compensation for the mental agony and physical harassment suffered by the complainant and also litigation expenses. Admittedly, OP No.1 is duly insured with OP No.3 vide policy certificate Annexure RW1/2 /R-1, for a sum of Rs.20,00,000/-, therefore, OP No.3 being insurer is liable to indemnify the insured i.e OP No.1 to the extent of Rs.3,00,000/- and thus shall pay the said amount of Rs.3,00,000/-, to the complainant. It is made clear that OPs No.1 and 2 shall, jointly and severally, pay Rs.20,000/-, to the complainant as compensation for mental agony and physical harassment caused to him and also pay Rs.5,000/- as litigation expenses.

14.         In view of the aforesaid discussion, we hereby partly allow the present complaint and direct the OPs, in the following manner:-

1. The OP No.3 is directed to pay Rs.3,00,000/-, to the complainant.

2. The OPs No.1 and 2, jointly and severally are directed to pay  Rs.20,000/- as compensation for the mental agony and physical  harassment suffered by the complainant and also pay Rs.5,000/-  as litigation expenses.

 

                   The OPs are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 04.03.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President