Date of filling : 20.03.2018
Date of order : 29.09.2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE
PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A., B.L. PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc., B.L. MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A., MEMBER-II
THURSDAY THE 29 DAY OF SEPTEMBER 2022
CONSUMER COMPLAINT NO. 7/2018
P. Paramasivam,
S/o. Periyasamy,
No. 46, Rettaimalai Srinivasan Pettai,
Tirupattur,
Vellore District. ...Complainant
-Vs-
1.Dr. Agarwal’s Eye Hospital,
No. 18, Taj Towers,
Officers Line,
Vellore – 632 001.
2. Dr. Amar Agarwal,
Chairman and Managing Director,
Dr. Agarwa’s Eye Hospital Ltd,
No. 19, Cathedral Road,
Chennai – 600 086. ...Opposite parties
Counsel for complainant : Thiru. M. Kulothangan
First and second opposite parties : Thiru. M. Suresh Kumar
ORDER
THIRU. A. MEENAKSHI SUNDARAM, B.A.,B.L.PRESIDENT
This complaint has been filed Under Section 12 of Consumer Protection Act 1986. The complainant has prayed this Hon’ble Commission to direct the opposite parties to pay a sum of Rs.20,00,000/- towards the compensation for the pain, suffering, mental agony and loss of vision on his right eye and disfiguration of the face and to pay the cost of the proceedings.
1.The case of the complaint is briefly as follows:
The complainant visited the first opposite party hospital on 14.03.2016 at Taj Towers, Officer’s line, Anna Salai, Vellore with a complaint of lesser vision on his right eye, than the left eye. The diagnosis was done by the doctors employed by second opposite party, at first opposite party hospital in Vellore, Vellore District. On the very same day, the complainant was advised to undergo an operation for removing cataract. The register number that was assigned to the complainant at the hospital was 95069. The complainant was directed to pay Rs.32,500/- towards the charges for the operation and for fixing the lens. As the complainant’s son is employed in TCS at Chennai, by way of medical insurance available to him the complainant was told to pay Rs.2,500/- by cash as Rs.30,000/- would covered under the medical insurance coverage of the complainant’s son. Accordingly, the complainant also paid a sum of Rs.2,500/- by cash on 18.03.2016 and surgery was done on 18.03.2016 at first opposite party’s hospital in Vellore by the Doctors who are employed by the second opposite party. During the course of surgery, even though the right eye was not dilated properly to operate and remove the cataract, the first opposite party had tried to remove the cataract by force and due to the negligent act of the first opposite party some complications arose and the Doctors who attended on him, thought it fit to refer the patient namely the complainant, to the second opposite party at their Chennai Branch hospital at Vellore. Subsequently the surgery on the right eye was done on 18.03.2016 at the second opposite party’s hospital in Chennai and the complainant was under medical care from 19.03.2016 to 22.03.2016 at the second opposite party’s hospital. After discharge from the hospital, the complainant was advised to attend for review on 16.04.2016. When the complainant came to the second opposite party’s hospital for review on 16.04.2016, the complainant found that there was loss of vision on his right eye. But the second opposite party suggested to have some medicine prescribed by the second opposite party that was sold at the pharmacy, attached to the second opposite party hospital and directed the complainant to attend for review again on 28.04.2016. Even after, review on 28.04.2016 the complainant could not even get the vision on his right eye which he had prior to the surgery at the first and second opposite parties hospitals. The complainant felt that he lost his vision on his right eye. However, on the second opposite party’s advice the complainant attended for review at the second opposite party hospital again on 06.08.2016, but there was no sign of restoration of vision on his right eye. When the complainant asked about the same there was no proper reply from the second opposite party and another doctor by name Dr. Atul Dhawan who was one among the team of the Doctors at the second opposite party’s hospital. When the doctor in the first opposite party who conducted the operation, found that the right eye had not dilated properly for removing the cataract, he ought to have postponed the operation till proper dilation was made. Without informing the concern to the patient, the complainant herein for whom and dense and hard cataract is found, the opposite parties should not have done the operation without prior consent of the patient in writing. The opposite parties failed to inform the complainant about the dense and hard cataract prior to the operation and to get his consent for the further treatment and the same amounts to the gross negligence on the part of the opposite parties. He was told that there was no chance of getting vision on his right eye. The complainant states that only due to medical negligence of the first and second opposite parties and the team of Doctors who attended on the complainant at the opposite parties’ hospital in Vellore and Chennai, the complainant lost vision on his right eye. Prior to surgery the complainant was having vision on his right eye and he could read the writings and news papers. But now he lost his total vision on the right eye completely and also disfiguration in his right eye which totally spoiled his natural appearance of the face of the complainant. There is a deficiency in service on the part of the both the opposite parties and the team of doctors employed by the second opposite party and who attended on the complainant in connection with the medical treatment given to him at the opposite parties’ Hospitals. Therefore the opposite parties are bound to pay compensation to the complainant on account of the medical negligence resulting in irreparable loss caused to the complainant. Hence, this complaint. The complainant issued a lawyer notice on 28.10.2016 the claiming compensation for the negligence and deficiency in service by the opposite parties and the second opposite party has also gave a reply on 28.12.2016. The opposite party with the claim of the complainant. The complainant forced filed before this Hon’ble Commission.
2. Written version of the opposite party is as follows:
The complainant Mr. P.P. Paramasivam was under the treatment of the first opposite party since 04.03.2016 as opposed to 14.03.2016 when he came with complaints of defective vision in both eyes. It is relevant to point out that the complainant is a diabetic patient for the past 18 years. After anterior segment examination, it was noted that his vision was 6/12p in the right eye and 6 /9p in the left eye, and it was correctly diagnosed by the Doctors of the first opposite party who examined the patient and arrived at the conclusion that he had nuclear sclerosis cataract grade III which is a type of cataract which occurs due to age related changes in the density of the crystalline lens of eyes. The dilated fundus examination view was hazy due to dense cataract and was advised surgery for both eyes. Fundus means the inner part of the eye. It is pertinent to mentioned that a retinal examination should be the compulsory done by all Ophthalmologists on the patient who undergo any eye surgery, to rule out any retinal disorders and the same was done for the complainant. Thereafter on 18.03.2016 the complainant underwent a cataract surgery at the first opposite party for the right eye. The preliminary examination was carried out by the first opposite party as the same was a pre-requisite before any surgery. Upon the preliminary examination, it was noted that blood sugar level was 190mg/dl and blood pressure was 100/60mmhg and was thereof posted for surgery. A manual small incision was taken to the Chennai Main Hospital. The complainant’s alleged loss of vision and disfiguration was only due to the aforesaid reason, which are not attributable to any act of medical negligence on the part of the opposite parties and thus the allegation that there was any deficiency in the services provided on the first and second opposite parties expressly denied. The complainant was given the standard and accepted mode of treatment. All the procedures that were performed on the complainant were done with his due consent after informing him in detail of all related complications that may arise. No such act/treatment/procedure was done without his due consent and nothing was done forcefully. The conditions of the complainant that his vision cannot be regained is not backed by any third party medical opinion or documentation. The opposite parties are bound to pay compensation to the complainant on account of medical negligence and irreparable loss due to pain, suffering, mental pain and loss of vision as mentioned in para 5 is also submitted to be baseless and is emphatically denied and the complainant may be put to strict proof. The opposite parties submit that its Doctors treated the complainant with all care and caution and as such they deny any negligence of service. Consent was taken from the complainant without which the opposite parties would never proceed with surgery. With regards to the claim in para 12 of Rs.20,00,000/- the opposite parties submit that it is exorbitant and without any basis. At the cost of repetition, the opposite parties deny any negligence on their part and reiterates and complainant was treated with care and caution and consequently denies their liability to pay compensation and damages of Rs.20,00,000/- and costs of the proceedings. The first party pray that the Hon’ble Commission may be pleased to dismiss the complaint with cost.
3 Proof affidavit of complainant filed. Ex.A1 to Ex.A14 were marked. Proof affidavit of opposite parties not filed. Documents not filed. Written argument of complainant filed. Written argument of opposite parties not filed.
4. The Points that arises for consideration are:
1. Whether there is any deficiency in service on the part of the opposite
parties?
2. Whether the complainant is entitled for relief as claimed in the complaint?
3. To what relief, the complainant is entitled to?
5. POINT NOS.1&2: The complainant had approached the opposite party for cataract surgery for both eyes on 14.03.2016. After examination of the complainant by the opposite party Doctor he was advised to undergo cataract surgery. The complainant paid Rs.32,500/- towards the charges for surgery and lens. This amount was paid from medical insurance of his son. Surgery was fixed on 18.03.2016 at the first opposite party Hospital. During the course of the surgery, the right eye was not dilated properly to operate and remove the cataract. But, the doctors of the opposite party without waiting for proper dilation, they removed the cataract forcefully. As a result an injury had happened in the right eye. Immediately, he was taken to second opposite party Hospital where he was admitted as inpatient from 19.03.2016 to 20.03.2016. Thereafter he was visited the second opposite party’s Hospital for review on 16.04.2016. At that time, he was shocked to learn that he lost his vision in his right eye. The allegation of the complainant is that due to the negligent operation of the first opposite party the complainant lost his vision. Whereas the opposite party in their written version, states that since the complainant is a diabetic for past 18 years and had hard cataract and mid dilated pupil the complainant was duly explained by the first opposite party. On the operation table surgery was performed step by step on the complainant. During the surgery, the cataractous lens dropped into the vitreous cavity. The cataractous lens dropped into the vitreous cavity, due to the lack of support in the posterior capsule which is in the lens bag. This cannot be evaluated before surgery and therefore, it is impossible to predict by any surgeon before the surgery. The complication which arose during the surgery which by no means could have been predicted by the first opposite party. Thereafter taking good meditative action, the first opposite party closed the surgical wound with sutures. This was explained in detail to the complainant as to why the surgical wound was closed. In this regard we have gone through certain literature in the field of ophthalmology, according to that, the dropping of lens into the vitreous cavity itself is a negligent act on the part of the surgeon. Even, if it had accidently fallen into the cavity, the lens should have been immediately removed from the cavity. But, in the present case the first opposite party failed to do so. And the reason stated by the first opposite party is that the first opposite party did not have the specialized equipment and vitreoretinal surgeon. In our consider opinion, the opposite party is well aware of the medical history of the complainant that he is diabetic for past 18 years and his cataract is hard enough to be removed. Then, the opposite party should have been prepared with specialized equipment’s and vitreoretinal surgeon. If not, they could have referred the complainant for the surgery to the second opposite party. In the present case they failed to do so. Therefore, in our consider opinion without having adequate facilities for the complicated surgery, the first opposite party should not have done the operation which resulted in the loss of vision in the eye, for the complainant, which cannot be compensated at any cost. Therefore in our consider opinion that there is a deficiency of service on the part of the first opposite party, in performing the surgery and second opposite party being the management of opposite party is also vicariously liable for the deficiency in service on the part of the first opposite party. Hence, these Point Nos. 1 and 2 are decided in favour of the complainant.
6. Point No. 3: As we have decided in Point Nos. 1 and 2 that there is a deficiency in service on the part of the opposite parties. The first and second opposite parties are jointly or severally directed to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards cost to the complainant. Hence, this Point No.3 is also answered accordingly.
7. In the result this complaint is partly allowed. The first and second opposite parties are jointly or severally directed to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards cost to the complainant, within one month from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% per annum from the date of this order to till the date of realization.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 29th September 2022.
Sd/- Sd/- Sd/-
MEMBER-I MEMBER – II PRESIDENT
LIST OF COMPLAIANNT SIDE DOCUMENTS:
Ex.A1-14.03.2016 – Copy of the medicine prescription issued by the 1st opposite
party
Ex.A2-18.03.2016 – Copy of the payment of receipt issued by the first opposite party
Ex.A3-18.03.2016 - Copy of bill issued by the first opposite party
Ex.A4-20.03.2016 – Copy of medicine prescription issued by the second opposite
Party
Ex.A5-20.03.2016 – Payment bill issued by the second opposite party
Ex.A6-07.04.2016 – Copy of ophthalmic report issued by the second opposite party
Ex.A7-16.04.2016 - Copy of Medicine prescription issued by the second opposite
Party
ExA8-28.04.2016 - Copy of medicine prescription issued by the second opposite
Party
Ex.A9-28.04.2016 - Copy of Pharmacy bill issued by second opposite party
Ex.A10-03.05.2016- Copy of Ophthalmic report issued by second opposite party
Ex.A11-06.08.2016- Copy of Consultation charges receipt issued by second
opposite party
Ex.A12-28.10.2016- Office Copy of the Lawyers notice to the second opposite party
Ex.A13 - Acknowledgement card
Ex.A14-28.12.2016- Reply notice given by the second opposite party
LIST OF OPPOSITE PARTIES SIDES DOCUMENTS: -NIL-
Sd/- Sd/- Sd/-
MEMBER-I MEMBER – II PRESIDENT
