Date of Filing:17.12.2007<br /> Date of Order:29.12.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 29TH DAY OF DECEMBER 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> <br /> COMPLAINT NO: 2518 OF 2007<br /> <br /> 1. Sujatha. A,<br /> M/o Madhu.R,<br /> H.No. 23/2, Jain Medical Stores Complex,<br /> Triveni Road, K.N. Extension,<br /> Yeshwanthpur, Bangalore 22.<br /> <br /> 2. R. Madhu, S/o Ramakrishna Reddy<br /> & Sujatha. A,<br /> H.No. 23/2, Jain Medical Stores Complex,<br /> Triveni Road, K.N. Extension,<br /> Yeshwanthpur, Bangalore 22. Complainants<br /> <br /> V/S<br /> <br /> 1. Dr. Chandrakumar (M.B.B.S, M.D (AIMS)),<br /> Nethradama Super Speciality Eye Hospital,<br /> No. 256/14, Kanakapura Main Road,<br /> 7th Block, Jayanagar, <br /> Bangalore-82.<br /> <br /> 2. Dr. Sri Ganesh (Medical Director),<br /> Nethradama Super Speciality Eye Hospital,<br /> No. 256/14, Kanakapura Main Road,<br /> 7th Block, Jayanagar, <br /> Bangalore-82. Opposite Parties<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed against opposite parties for medical negligence. The patient by name Madhu has been treated in Nethradhama Hospital. He was having only one eye sight that is right eye. It was partially visible. When he was taken to Nethradhama Hospital Dr. Chandrakumar told that sight will be visible and advised for operation. On 21/01/2006 operation was conducted and it was successful. Again 2-3 times he went for check-up he was told that there is some water in eye and he has to remove that water and he advised second operation is necessary. On 12/07/2006 second operation was done. The patient suffered pain in his eye and head hake. Next day patient went to the hospital. After removing the bandage eye was not visible. Some eye drops and medicines were given and third operation was done on 7th August-2006 and it was advised to take medicine for 5 months. After one year opposite party told that eye will not be visible. This case is relayed in TV-9 on 19/02/2007. Opposite parties have not given any response. Money and eyesight was lost. Patient is suffering from this incident. The complainants have prayed kindly to do justice for Madhu. <br /> 2. Notice issued to opposite parties. Opposite parties appeared through advocate and filed joint defence version stating that the complaint is not maintainable. Sri Madhu complainant No.2 presented before the opposite parties on 12/01/2006 with history of sudden loss of vision in right eye in 10 days. This patient had blindness since birth for which he was operated for both eye elsewhere 20 years back following which he had ambulatory vision. He had lost vision of left eye several years back, for which he did not seek any medical advice. On examination, his vision in right eye (RE) was just counting fingers close to face and just light perception in the left eye. His Intraocular pressures were 15 and 08 in right eye and left eye respectively. Anterior segment showed both eyes congenital defect (by birth) micro cornea, nystagmus and Aphakia with thick posterior capsular opacification (PCO). Fundus examination of both eyes media was hazy due to PCO. Right eye showed total Retinal detachment and left fundus could not be visualized. A clinical diagnosis of Micro cornea, congenital cataract (operated) with thick Posterior Capsular opacification with retinal detachment in Right eye was made. Sri Madhu was advised right eye urgent surgery under very guarded visual prognosis in view of childhood blindness due to micro cornea, congenital cataract and retinal detachment. The patient was also advised left eye ultra Sonography B-scan, which he did not undergo giving reasons that he did not want any treatment in the left eye. The patient was explained that if surgery is not done, he will go blind immediately and eye ball will shrink. After explaining the risks and benefits of surgery and a surgical success of only 50-55% (not vision) retinal reattachment surgery was done on 21st Jan 2006. The patient was also explained about silicon oil removal and regular follow-up life long. Retina was reattached. Post operatively, patient had good ambulatory vision of 6/120. On further follow up on 18th February 2006, Patient had developed macular pucker (PVR) and IOP was normal and was also advised surgery for macular pucker with silicon oil removal at the earliest. However, the patient did not turn up for surgery or follow up fir 4 ½ months. He visited on 30th June 2006 with history of decrease in vision and pain. When asked why he has not come for follow up or for the surgery, the reason given was that he did not have any problem after the surgery till now. When examined, his retina was attached with macular pucker and IOP of 39 mm of Hg. He was seen by Glaucoma consultant and was advised anti-glaucoma medication, Pressures did not come under control. Second surgery was done on 12th July 2006 for PVR removal. Post operatively, pressures did not come under control. He was referred to Glaucoma consultant, who advised RE-trabeculectomy. After explaining the risks and guarded prognosis, RE-trabeculectomy was done on 7th August 2006. His pressures came under control. Retina was attached. However the patient’s eye went in for pthisis bulbi. Because of the biological nature of the body and the eye, which is defective by birth, and poor follow up and not getting the operation done on time has led to patient losing sight in his right eye. The averments made in the complaint are very vague and the complainant Madhu who did not take medical check-up. Due to his defective nature of body and the eye is blaming the opposite party. The complainants instead of taking second opinion took law into their hands by blackmailing the opposite party in all manners, including filing an imaginary complaints before media and thereby attempted to blackmail. The complainants also filed complaint before the District Legal Services Authority claiming compensation and have presented the instant complaint seeking same relief. There is no deficiency of service by the opposite party and the opposite party which is a reputed eye super speciality hospital had taken all precautions and necessary care. <br /> 3. Affidavit evidence of mother of patient Madhu has been filed who is also the complainant. On behalf of opposite parties affidavit of Dr. Chandrakumar has been filed. Arguments are heard. The complainant Smt. Sujatha is the mother of the patient Madhu. Complainant was presented in person without the legal assistance by Smt. Sujatha. In the defense version it is stated that son of the complainant Madhu aged about 28 years presented himself to the opposite party hospital on 12/11/2006 with history of sudden loss of vision in right eye. This patient had blindness since birth for which he was operated elsewhere 20 years back. He had lost vision in left eye several years back for which he did not seek any medical advice. It is stated in the version that on examination his vision in right eye (RE) was just counting fingers close to face and just light perception in the left eye. Right eye had total retinal detachment and left fundus could not be visualized. It is stated in the defense version that patient was advised right eye urgent surgery under very guarded visual prognosis in view of childhood blindness. Patient was explained that if surgery is not done, he will go blind immediately and eye ball will shrink. After explaining the risks and benefits of surgery and a surgical success only of 50-55% (not vision) retinal reattachment was done on 21/01/2006. It is also the case of the opposite party that patient was seen by Glaucoma Consultant and was advised anti-glaucoma medication. In spite of maximum anti-glaucoma medication, pressures did not come under control. As per the defense version second surgery was done on 12/07/2006 for PVR removal. Post operatively, pressures did not come under control. He was referred to Glaucoma consultant, who advised RE-Trabeculectomi and after explaining the risks and guarded prognosis RE-Trabeculectomi was done on 07/08/2006. His pressures came under control. Retina was attached. The defense version discloses that the patient lost his vision in his right eye. The opposite party has produced OPD sheets. On perusal of the OPD sheets produced by the opposite party the first surgery was done on 21/11/2006 does not find place in the OPD sheet. Likewise as per the defense version second surgery was done on 12/07/2006 for PVR removal. In the OPD sheet this also does not finds place. OPD sheet of 12/07/2006 not produced. As per the defense version, on 07/08/2006 after explaining the risks RE-Trabeculectomi was done on 07/08/2006, but in the OPD sheet produced by the opposite parties that sheet does not find place. No OPD sheet or case paper or any other hospital documents produced before this Forum to show that on 07/08/2006 RE-Trabueulectomi was done. On perusal of the OPD sheets produced by the opposite parties, it is seen that the opposite party hospital did not take or done any pre-surgery/operative examinations and precautions. It is obligatory and duty of the hospital that before conducting surgery or operation on a person, pre-surgery procedures are to be followed by the Doctors who will be in charge of the patient. Obtaining consent of the patient or his attendant is also necessary before conducting surgery or operation. In this case the opposite party has not produced any records or documents to show that necessary consent was obtained of the patient or his attendant that is mother or father. Even it is not explained in the defense version by the opposite party that the necessary consent was obtained before going for the surgery. Therefore by the records produced, it is very evident and clear that surgery was conducted on the patient without the necessary consent. This lapse on the part of the opposite party hospital is definitely a negligence and failure of duty. The opposite party stated in the defense version that patient Madhu was seen by Glaucoma Consultant and he was referred to Glaucoma Consultant and who advised RE-Trabeculectomi. But in the defense version who was the Glaucoma consultant has not been disclosed. In the OPD sheet also there is no mention of referring the patient to Glaucoma Consultant. The entire OPD sheet produced by the opposite party hospital is silent with respect to referring the patient to Glaucoma Consultant. The opposite party hospital except producing OPD sheets has not produced any other documentary evidence or proof and records to show that the hospital has taken utmost care and caution and followed the established procedure before conducting surgery on the eye. No doubt it is the primary duty of the complainant to establish negligence of Doctors, but in this case on perusal of the OPD sheets and defense version the burden had been shifted to the opposite parties to establish that they have taken utmost care and precaution in treating the patient. The records disclosed that necessary precaution and the primary preoperative pre-examination was not taken and no consent was obtained of the patient or his attendant before conducting surgery and nothing has been produced to show that, what are the steps that could have been taken by the patient after operation. The complainant is a lady she will not be aware of the medical aspect of the case, she admitted her son to the opposite party hospital with a profound hope that her son may get vision in the right eye since the vision on the left eye had already gone. It is unfortunate that the patient lost his vision in the right eye also. The surgery done by the opposite party hospital not once but three times could not help to retain the vision in the right eye. Medical negligence may be defined as want of reasonable degree of care and skill on the part of the Medical Practitioner in the treatment of a patient. A reasonable degree of care and skill is expected though an error of judgment on the part of the Doctor can be excused. A Doctor/Hospital charged with negligence can clear himself by showing that he has acted in accordance with general and approved practice. In this case the opposite party hospital not cleared itself from the charge of professional negligence by producing necessary and required documents and records of the hospital. It is not in every case that Doctors are being indicted and made to pay compensation by the Consumer Disputes Redressal Forum. In such of the cases where the required care and caution and method not adopted in those cases, only Doctors are held liable to pay compensation. I am aware of the fact that Medical Profession is a Noble Profession, the Doctors are held in high esteem. I have got great regard and respect for the Medical Profession, but however if the patient was not attended with a due care, skill and diligence in that case the Hospital/Doctors shall have to be held responsible for the suffering undergone by the patients. In this case, the opposite party has not cleared itself from indictment of professional negligence. Therefore, the opposite party hospital shall be held responsible to make good the loss sustained by the patient. It is the case of the complainant that she has spent about Rs.30,000/- towards the payment of fee to the hospital apart from the medicine and other expenses. The complainant has produced receipt of the opposite party hospital, she has spent about Rs.30,000/- towards the hospital bill. She has produced the receipts. Taking into consideration of all the facts and circumstances of the case, I feel it would be just, fair and reasonable to direct the opposite party hospital to pay Rs.30,000/- as compensation to the complainant for all the sufferings and injury sustained by the son of complainant. This amount may be some help to the complainant. The complainant submitted that she is coming from poor family, her son lost the vision in both eyes and he has to be maintained through out his life and he will be dependent person, he shall have to be supported through out life. The complainant submitted that she is coming from poor family and it has become a burden on her to support her son who has gone blind. Therefore, this amount of compensation may mitigate the misery and hardship to some extent. The opposite party hospital being a reputed Hospital and Super Speciality Hospital will not be put to hardship in paying this amount of compensation to the complainant. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 4. The Complaint is allowed. The opposite party Nethradhama Super Speciality Hospital, Jayanagar, Bangalore is directed to pay Rs. 30,000/- as compensation to the complainant within 30 days from the date of this order. In the event of non-compliance of the order within 30 days by the opposite party hospital, the said amount carries interest at 12% p.a from the date of this order till payment/realization.<br /> 5. The complainant is also entitled to Rs.2,000/- towards cost of the present proceedings from opposite party.<br /> 6. Send the copy of this Order to both the parties free of costs immediately as a statutory requirement. <br /> 7. Pronounced in the Open Forum on this 29TH DAY OF DECEMBER 2008. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br /> <br /> Rhr.<br />