Haryana

Yamunanagar

CC/981/2010

Shambhu Ram S/o Birva Ram - Complainant(s)

Versus

Dr.Dinesh Goel - Opp.Party(s)

Inperson

24 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                            Complaint No. .. .…981  of 2010.

                                                                                             Date of institution: 18.10.2010.

                                                                                             Date of decision: 24.4.2015

Shambhu Ram Yogi son of Sh. Birwa Ram, resident of village & Post Office Jathlana, Sub Tehsil Radaur, District Yamuna Nagar. 

                                                                                                                       …Complainant.

                                    Versus

 

1. Dr. Dinesh Goel, Goel Eye Care Centre, Opposite Dimple Cinema, Jagadhri, District Yamuna Nagar.

  

2. Oriental Insurance Company Ltd. Opposite Madhu Hotel, Yamuna Nagar through its Branch Manager.

 

                                                                                                           …Opposite parties.

                        Complaint under section 12 of

                        the Consumer Protection Act.

 

CORAM:          SH. A.K.SARDANA PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Mukesh Garg, Advocate, counsel for complainant.   

              Sh. R.K.Radauri proxy counsel for Sh.S.C.Jindal, Advocate, counsel for OP No. 1 

              Sh. Sushil Garg, Advocate, counsel for OP No.2.

 

ORDER

 

                        Brief facts leading to the institution of the present complaint are that the complainant felt problem in his vision and he visited the OP doctor for check up of his eyes who advised him for operation and thereafter OP doctor operated the left eye of complainant in November 2009 and charged Rs. 5500/- on account of operation & lens  fixation charges besides fee of tests & admission etc. but the vision of the complainant did not improve. Thereafter in the month of April 2010 OP doctor advised the complainant that for proper vision, his right eye will have also to be operated. So, the complainant having no alternative got his right eye operated on 6.5.2010 and at the time of operation of right eye, OP doctor received the card and prescription slip from the complainant which were given at the time of operation of left eye and did not return to the complainant on his demand again and again. OP charged Rs. 5500/- from the complainant on account of operation of right eye & affixing lens therein and also charged fee of tests, admission & check up etc. separately.  Inspite of operation of both eyes, vision of the complainant did not improve and thus he got checked his eyes at Karnal and the doctor at Karnal told him that neither his left eye has been operated properly nor lens therein has been affixed in proper manner. Thereafter the complainant got checked his eyes from Dr. P.C.Sharma, Hospital, Arya Chowk, near Telephone Exchange Ambala City and he also told that the operation of the eyes has not been done properly and thereafter complainant got checked his eyes at PGI Chandigarh also where the same advise  has been given by the doctor of PGI to the complainant and further suggested to get operate his both eyes again and complainant is still getting treatment of his eyes at PGI Chandigarh which is due to sole negligence on the part of OP doctor  causing mental & physical harassment to the complainant. In the end, complainant has prayed for issuing a direction to the OPs to pay a sum of Rs. 11,000/- charged from complainant on account of cost of  operation, lens &  medical check up etc. and also to pay a sum of Rs. 80,000/- as compensation for mental agony, harassment as well as cost of proceedings etc.      

2.                     Upon notice, OP No.1 appeared through counsel and submitted written statement raising preliminary objections that the present complaint is wholly misconceived, groundless, false, frivolous, vexatious and scurrilous one which is not sustainable in the eyes of law as the same is cooked up and has been filed without justified reason/cause against the OPs just to harass, defame and extort money from the answering OP. No specific & justified allegations with regard to negligence or deficiency in providing services, has been made by the complainant against the answering OP and the complainant has totally failed to explain as to how the OP doctor was negligent, hence the complaint being based on non specific, unscientific and laymen conjectures & surmises, is liable to be dismissed.  This complaint is bad for non joinder and mis-joinder of necessary parties as the OP is insured with Oriental Insurance Company ltd. opposite Madhu Hotel, Yamuna Nagar vide professional indemnity insurance policy No. 261700/48/2010/1459 for the period from 17.8.2009 to 16.8.2010 for a sum insured of Rs. 10,00,000/-, therefore, the insurer is the necessary party in the complaint and thus the same is liable to be dismissed on this score alone. On merits, it has been urged that the answering OP is a qualified and expert (Eye Surgeon) having qualifications MBBS, M.S. and has performed thousands of operations in the field of eye and is having experience of about 17 years after Post-Graduation Course in various clinical settings. The OP doctor obtained his MBBS in 1988 and completed his MS in 1993 from Govt. Medical College Rohtak. The OP doctor got the fellowship from L.V. Prasad Eye Institute Hyderabad in the field of Intraocular Lens and Cornea. The OP doctor served for three years in Krishna Dham Kurukshetra, a charitable institution and the OP doctor had served in Civil Hospital at Yamuna Nagar for a period of about 7 years and after that he has established his private hospital since 2003. The patient Shambhu Ram son of Sh. Birwa Ram was first time brought to the OP No.1 hospital on 9.12.2008 in the OPD  who told that he is diabetic patient for the last 6/7 years. The patient was complaining of diminishing vision in both eyes. He was examined and found to have cataract in both eyes; left eye was having more cataract than right eye. His intraocular pressure, BP was found to be normal. He was patient of blood sugar. The patient was advised cataract surgery with IOL in left eye after checking blood sugar and antibiotic drops were started. The patient was explained that since the patient is an old patient of diabetes, so the damage which the sugar has already caused to the eye (Parda) will not be cured. Thereafter the patient went to his house and asked for time for surgery.  The patient came on 13.12.2008 for cataract surgery of his left eye and as such he was admitted on 13.12.2008 after necessary investigations required for operation in the hospital of OP doctor and all pros & cons alongwith possible alternative line of treatments and prognosis were discussed/explained to the complainant and after getting verbal consent from the complainant, well informed written consent was got signed from the patient/complainant.  The OP doctor performed the cataract operation on the left eye of the patient with intraocular implantation under local anesthesia in his hospital’s well equipped/properly sterilized operation theatre on 13.12.2008.  The patient had no pre-operative complications and was discharged on 13.12.2008 in the evening to be followed on 14.12.2008. The discharge ticket was handed over to the attendant Sh. Sanjiv Kumar and requisite medicines were prescribed over it which were supposed to be taken by the patient at home. The patient came on 14.12.2008 and was examined by OP doctor. The bandage was removed and found that his cornea was clear and lens fitted was in place, sutures were intact and he was advised to come after a week and advised medicines as mentioned in the discharge slip. Thereafter the patient Shambhu Ram son of Birwa Ram came to the OP doctor on 5.5.2010 in the OPD and was having diminishing vision in right eye. He was examined and found to have cataract in right eye. His intraocular pressure, BP was found to be normal. He was patient of blood sugar and was carrying lab reports indicating the sugar to be 81 mg f and 179 mg pp. the patient was advised cataract surgery with IOL in right eye as his blood sugar was controlled. The patient was explained that since the patient is an old patient of diabetes, so the damage which the sugar has already caused to the eyes(Parda) will not be cured. There after the patient went to his house and came on 6.5.2010 for cataract surgery of his right eye and as such he was admitted on 6.5.2010 after necessary investigations required for operation in the hospital of  OP doctor and operation was performed on the right eye of the complainant with Intraocular Implanation under local anesthesia and patient was discharged on 6.5.2010 in the evening to be followed on 7.5.2010 and discharge ticket was handed over to his attendant Sh. Rajesh Kumar prescribing medicines thereupon which were supposed to be taken by the patient at home. Reasonable degree of the skill and care with due diligence was used/ adopted by the OP No.1 while operating the eyes of complainant and providing the said treatment to the complainant and no damage, disability/deformity is resulted to the complainant in this case because of OP No.1 rather complainant has failed to submit any evidence/certificate in this regard and to support his allegation which he has made against the answering OP.  It is emphatically submitted that the OP doctor has treated the complainant as per prescribed norms and with due diligence, which would be expected from other prudent doctor in the same circumstances. It is respectfully submitted here that the OP has not committed any kinds of deficiency in service and prayed that the complainant is not entitled to get any alleged amount because of the allegations of negligence or deficiency in service made in the complaint which are wholly misconceived, groundless, false, untenable in law besides being extraneous and irrelevant having regards to the facts and circumstances of the matter and thus the present complaint is liable to be dismissed.

3.                     Further, the OP No.1 in the written statement has alleged that his hospital is insured with the Oriental Insurance Company ltd. opposite Madhu Hotel, Yamuna Nagar vide professional indemnity insurance policy No. 261700/48/2010/1459 w.e.f. 17.8.2009 to 16.8.2010 which has not been impleaded as party to the complaint though he is necessary party. Accordingly, the complainant impleaded him as OP No.2 by filing amended title and OP No.2 also summoned in this case to put his version, if any.

4.                     OP No.2 also filed written statement separately urging therein that there is no allegations towards the answering Op with regard to any deficiency in service and as such the present complaint is liable to be dismissed against the answering OP. The OP No.1 Dr. Dinesh Goyal, Goyal Eye Care Centre, Yamuna Nagar is insured with the answering OP vide policy No. 261700/48/2010/1459, w.e.f. 17.8.2009 to 16.8.2010 under professional indemnity policy subject to its terms and conditions. There is no privity of contract in between the complainant and answering OP and hence the present complaint is not maintainable against the answering OP. The OP doctor provide the medical treatment/surgical treatment to the complainant as per medical norms and ethics, without any negligence as alleged. The complainant has been properly examined, investigated, diagnosed and thereafter, the medical treatment was given as per the prescribed medical norms. The OP doctor is an expert and qualified eye surgeon and has treated thousands of patients having well experience in the said field. The complainant did not pleaded any where in his complaint that what treatment has been given and what treatment ought to be given as per the medical norms, by the OP doctor nor specifically instanced, any negligence on the part of OP doctor and the present complaint is based on false and frivolous grounds, having no sanctity in law and prayed for dismissal of complaint with costs in the interest of justice.  

5.                     To prove his case, counsel for the complainant has tendered into evidence affidavit of complainant as Annexure CX and documents as Annexures C-1 to C-12 and closed evidence on behalf of complainant whereas on the other hand, counsel for OP No.1 has tendered affidavit of Dr. Dinesh Goyal,  as Annexure RX and documents as Annexures R-1 to  R-7 and closed the evidence on behalf of OP No.1. Counsel for OP No.2 also tendered document as Annexure R.2/1 and closed evidence on behalf of OP No.2.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on the file. Learned counsel for the complainant argued that the OP doctor operated both eyes of the complainant and due to his negligence/ deficiency, the vision of the complainant did not improve and OP called him in centre from time to time and had been charging fee for check up. Thereafter the complainant got checked his eyes at Karnal and the doctor at Karnal told him that his left eye has not been operated properly as well as lens has also not been affixed in proper manner. Learned counsel for the complainant further argued that the complainant got checked his eyes from Dr. P.C. Sharma, Sharma Hospital, Arya Chowk, Near Telephone Exchange Ambala City and he also told that the eyes of the complainant has not been operated properly and neither lens has been fitted properly and the same advise has also been given by the doctor of PGI Chandigarh to the complainant that the operation of complainant eyes failed due to sole negligence of the OP doctor. To further strengthen his case, complainant’s counsel submitted a case law delivered by Supreme Court of India in Civil Appeal No. 7620 of 2014 titled as Alfred Benddict and another Versus M/s Manipal Hospital, Bangalore and others, 2014(4) RCR(Civil) page 546 wherein it has been held that “Medical Negligence-right arm of a baby girl had to be amputated due to negligence of Hospital Staff-Compensation to Rs. 20 lakhs awarded”.

7.                     On the other hand, counsel for OP No.1 argued that the patient was properly examined, investigated, diagnosed and treated by OP doctor as per prescribed norms of general practice as applicable to the case in question in prevailing condition. Learned counsel for the OP No.1 further argued that the medical practice which is mentioned in the text books and journals of the subject concerned was applied by OP doctor without deviating from the normal prescribed line of treatment. Moreover, the complainant has totally failed to explain as to how the treating doctor was negligent, at which/what stage of treatment? What the OP doctor was supposed to do which he did not do? What the OP doctor was not supposed to do, what he did? What were other lines of treatment etc.? Learned counsel for the OP No.1 further argued that the complainant has neither tendered any expert opinion of any doctor nor any documentary proof to prove  that the operation conducted by the OP doctor Dr. Dinesh Goyal of Jagadhri is wrong in any manner and has drawn the attention of this Forum towards the case law delivered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Babu Lal Gupta (deceased) & Another Versus Navjyoti Eye Centre & Others, reported in 2014(1) CPC page 566  wherein it has been held that “Medical Negligence- Survery-Loss of vision-Complainant businessman aged 57 years was having a good vision but when he felt some pain in his eyes he consulted OP for treatment of eye pain. Repeated surgeries were performed and ultimately he was referred to the Eye Hospital of Ahmedabad and Chennai for further consultation- OP carried repeated operations after opinion given by these hospitals- Patient suffered from further complications and ultimately he lost total vision due to wrong treatment as alleged-Complainant filed complaint claiming a sum of Rs. 1 crore for loss of vision due to wrong surgeries performed by OPs- From evidence on record, it was revealed that main cause of loss of vision was not the treatment or operation of eyes but complainant was a patient of diabetes- Loss of vision was due to proliferative diabetic retinopathy and not due to wrong treatment as alleged- In case, the method of treatment were not adopted by OP, it could result in several other ocular complications- OP cannot be held liable for any medical negligence in performance of duties and no case of carelessness is proved against the OPs- It is also held that referring a patient to other physician or hospital is not a case of abandonment or negligence. Complaint dismissed”. Learned counsel for the OP No.1 has also drawn the attention of this Forum towards another case law delivered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Kailash Kumar Sharma vs. Dr. Hari Charan mathur, 1997 (2) CPR page 126 wherein it has been held that “in absence of any evidence that loss of vision after operation for cataract was due to negligence of doctor, complaint claiming compensation against doctor was liable to be dismissed” and has also drawn the attention of this Forum towards another case law delivered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Snehlata & another vs. Ratan Jyoti Netralaya & Another, III (2007) CPJ page 275 (NC) wherein it has been held that Medical Negligence- Loss of vision- Complainant developed Glaucoma in eyes-Surgery performed on left eye- Underwent another surgery of right eye despite losing vision of left eye-Alleged, treating doctor promised improved vision, failed to take proper care-Complaint dismissed by For a below-Hence revision-Glaucoma an irreversible disease wherein free flowing fluid in eyes get blocked, impairing vision- Surgery can only stop further loss of vision but cannot correct or improve vision-Records showed words ‘failed trab’ does not mean surgery failed-Bolam test applied-Medical negligence not proved and also submitted an other case law delivered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Inderjeet Singh vs. Dr. Jagdeep Singh, reported in III(2004) CPJ page 20 (NC) wherein it has been held that Medical Negligence-Wrong operation-Complainant having problem in left eye-Implantation of lens suggested-Problem subsisted after surgery-Alleged permanent damage causing loss of 75% vision-Absence of expert opinion in support of allegation-Negligence not proved.               

                        Learned counsel for OP No.1 further relied upon the various judgments delivered by the Hon’ble National Commission in consumer case titled as G. Ravender Rao & Others Versus Ghulam Dastagir & Others, 2013 (1) CLT page 594, wherein it has been held that “the appellants, who are well qualified doctors treated the patient as per their best professional judgment and on the basis of diagnostic and clinical tests from a well equipped laboratory-Held, there is no medical negligence or deficiency in service in the treatment of patient and further in case titled as Ajay Gupta Versus Pradeep Aggarwal (Dr.) & others, IV (2007) CPJ page 64 (NC) wherein it has been held that “Treatment given contrary to established medical norms not proved-Expert evidence or medical literature in support of allegations not produced on record-Complaint dismissed-Appeal against order dismissed. Learned counsel for the OP No.1further relied upon the judgment delivered by the Hon’ble Supreme Court in case titled as Kusum Sharma & Others Versus Batra Hospital & Medical Research Centre & Others, 1(2010) CPJ page 29 (SC) wherein it has been held that doctor not guilty of medical negligence as long as they perform their duties and exercise ordinary degree of professional skill and competence-Medical negligence not proved in view of settled principles of medical negligence. No relief entitled. Learned counsel for OP No.1 further relied upon another case law titled as N. Krishna Reddy Vs. Christian Medical College & Hospital, 2007 (2) CPR page 260 (NC) wherein it has been held that “Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the complainant, no negligence or deficiency in service could be found against the hospital and doctors”.

8.                     From the facts narrated above, it is established that the complainant has failed to prove medical negligence on the part of OP No.1 doctor qua his treatment/ operation of his eyes by tendering any documentary evidence or expert opinion in support of his case whereas the specific burden to prove or show “As to what should have been done by the OP doctor which was not done or what was done, which should not have been done” was upon the complainant.  So, in these circumstances, we are helpless to hold that OP No.1 doctor was ever negligent or deficient in providing proper medical services to the complainant as alleged in the complaint. Further, the  authority Alfred Benddict and another Versus M/s Manipal Hospital, Bangalore and others (Supra) tendered by the complainant is not disputed but not identical to the facts and circumstances of the present case whereas the authorities Babu Lal Gupta (Deceased) & Another versus Navjyoti Eye Centre & Others, Kailash Kumar Sharma Vs. Dr. Hari Charan Mathur, Inderjeet Singh vs. Dr. Jagdeep Singh, Snehlata & another vs. Ratan Jyoti Netralaya & another, G. Ravender Rao & Others Versus Ghulam Dastagir & Others, Ajay Gupta Versus Pradeep Aggarwal (Dr.) & others, Kusam Sharma & Others Versus Batra Hospital & Medical Research Centre & Others and N. Krishna Reddy Vs. Christian Medical College & Hospital, (supra) tendered by counsel for OP No.1 are fully applicable to the facts of the  present case. Hence, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs. File be consigned to the record room after due compliance. 

Announced: 24.4.2015

                                                                                          (A.K.SARDANA)

                                                                                           PRESIDENT

 

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER