Haryana

Yamunanagar

CC/1018/2012

Bhupinder Singh S/o Bhagwan Singh - Complainant(s)

Versus

Dr.Dinesh Goyal - Opp.Party(s)

Surinderveer Singh

24 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                             Complaint No. .. .1018  of 2012.

                                                                                             Date of institution: ….24.9.2012.

                                                                                             Date of decision: 24.4.2015

Bhupinder Singh, Ex. Subedar, son of Sh. Bhagwan Singh, r/o H. No.112, Shankar Nagar, Opp. E.S.I. Hospital, Jagadhri, Distt. Yamuna Nagar.  

                                                                                                                       …Complainant.

                                    Versus

 

1. Dr. Dinesh Goyal, Goyal Eye Care Centre, Opp.  Dimple Cinema, Jagadhri, Distt. Yamuna Nagar.   
2. OIC, ECHS Policlinic, Yamuna nagar through its authorized person.
3. The Oriental Insurance Company Ltd., Opp, Madhu Hotel, Yamuna Nagar vide cover note No. 825445 w.e.f. 26.8.2011-25.8.2012.     

 

                                                                                                                 …Opposite parties.

                        Complaint under section 12 of

                        the Consumer Protection Act.

 

CORAM:          SH. A.K.SARDANA PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Surenderveer Singh, Advocate, counsel for complainant.   

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

              Sh. D.C.Singla, Advocate, counsel for OP No. 2.

              Sh. Rajiv Gupta, Advocate, counsel for OP No.3.

 

ORDER

 

                        Brief facts leading to the institution of the present complaint are that the complainant was suffering from Cataract in his left eye and to treat this, he contacted the OP No.2 which is an authorized clinic to treat the ex-servicemen. After examining the complainant, OP No.2 referred him to OP No.1 who is well known eye specialist. After examining, OP No.1 operated him for his left eye cataract on 1.4.2012 and he regularly visited the Op No.1 as OPD patient and took medicine & eye drops as per prescription of OP No.1 but it was very astonishing to him that instead of improving  the eye sight,   the eye sight of the operated eye was completely vanished and he became unable to see anything from the said eye. The complainant complained the matter to OP No1 but he did not take it seriously and assured that after some time the eye vision will itself improve and when he failed to remove the grievances of the complainant, then he made a complaint to the Op No.2 who again referred him on 18.5.2012 for review to the OP No.1. This time instead of examining the complainant properly, the OP No.1 told that he has many other patient and cannot spent much time on the complainant and again gave eye drops to the complainant and assured that his eye sight will be improved but all the assurance of OP No.1 proved bundle of lies. The complainant again made a complaint to the OP No.2 on 6.6.2012 and requested to refer him to another doctor or eye hospital whereupon the complainant was referred to Retina Specialist i.e. Kapil Eye Hospital, Ambala City where his left eye was again operated on 7.7.2012 for removing the residual cataract which is clear from the medical report of Kapil Eye Hospital, Ambala City that OP No.1 left the cataract in the eye of the complainant during operation as at the time of operation, the behavior of OP No.1 was not professional rather he was quarreling with someone on telephone. Thereafter, the complainant met the OP No.1 and intimated that due to his negligence & deficient attitude, he has suffered a lot mentally, physically & financially and for this, he should compensate him but OP No.1 refused to accede the genuine request of complainant and told him to get out of his hospital.  In the end, complainant has prayed for issuing a direction to the OPs to pay a sum of Rs. 4.90,000/- as compensation on account of mental agony, physical harassment & financial loss etc and also to pay a sum of Rs. 5000/- towards costs of proceedings.    

2.                     Upon notice, OP No.1 appeared and filed his 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 OP just to harass, defame and extort money from the answering OP. The present complaint is totally false and baseless which has been synthesized on the basis of unscientific layman, conjectures misbelieves. Assumption & presumption, where it is a fact that the complainant does not know ABC of disease pathology from which he was suffering from and progress of disease pathology and the line of treatment available. In this case no negligence has been committed by the OP and no specific allegation has been leveled against the OP. Hence the complaint is liable to be dismissed with or without thought/costs.   This complaint is bad for non joinder and mis-joinder of necessary parties as the OP is duly insured with the Oriental Insurance Company ltd. Opposite Madhu Hotel, Yamuna Nagar vide professional indemnity cover Note No. 825445 effective from 26.8.2011 to 25.8.2012 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. Further the complainant is not the consumer of answering OP as nothing has been charged by the answering OP from the complainant since he has been referred by OP No.2 Policlinic and thus OP No.2 is the hirer of services of OP No.1 and not the complainant but OP No.2 has not filed any complaint against OP No.1 as he is fully satisfied with the services of OP No.1 doctor. On merits, it has been urged that the answering OP is a qualified and reputed doctor (Eye Surgeon) having qualifications MBBS, M.S. and has performed thousands of operations in the field of eye and is having experience of about 19 years after Post-Graduation Course in various clinical settings. The OP doctor obtained his MBBS in 1988 and completed his MS in 1993 from Government Medical College, Rohtak. The answering OP is doing his private practice since 2003. The patient was brought to the OP No.1 hospital on 28.3.2012 as a referred patient from OP No.2 i.e. ECHS Policlinic since OP No.1 Hospital was having all necessary infrastructure, instrumentation and manpower necessary to dealt with almost all kinds of eye disease. The complainant was complaining of diminishing vision in both eyes and was examined and found to have posterior polar cataract in left eye. His intraocular pressure was normal. BP and Blood Sugar was found to be normal. The complainant was advised cataract surgery with eye IOL in left eye and antibiotic drops were started. Thereafter he went to his house and asked for time for surgery on 1.4.2012.  Since he had no other problem, as such he was advised to undergo cataract operation and all pros & cons alongwith possible alternative line of treatments and prognosis were discussed/explained to the complainant. After getting verbal consent from the complainant, well informed written consent was got signed from the patient/complainant for surgical treatment. Thereafter, the answering OP performed the cataract operation on the left eye of the patient with Intraocular lens implantation under local anesthesia in his hospital’s well equipped/properly sterilized operation theatre on 1.4.2012. During surgery, the patient was found to have posterior polar cataract with pre existing posterior capsular Rent. His hard part of cataract was removed and soft part of cortex was left behind at 12 O clock position which was not possible to remove at the time of surgery because if the operating surgeon tried to remove it, there were chances of further tearing of posterior capsule and Vitreous can come out and implanation of Intraocular Lens becomes impossible. So in this situation, residual cortex left behind get absorbed after some time and if it does not get absorbed and obstruct vision of patient, then operating surgeon can refer the patient to Retina Specialist for Vitrectomy. This medical fact has been clearly mentioned in the discharge slip which the complainant was given by the OP doctor who has also filed the same in the court.  The patient was discharged on 1.4.2012 in the evening to be followed on 2.4.2012. Patient was handed over the discharge ticket and requisite medicines were prescribed over it which were supposed to be taken by him at home. A written discharge summary was also handed over to the complainant with the direction to bring the patient next morning and discharge slip given to him has already been filed in the court. The patient came on 2.4.2012 and was examined by answering OP. The bandage was removed and found that his Cornea was clear and Lens fitted was in place and he was advised to come after a week and advised medicines as mentioned in the discharge slip. The patient came to OP doctor for follow up, his medicines were reduced and was prescribed eye drop. After 40 days of operation, all medicines were stopped when patient vision was checked and found to have 6/9 vision (corrected) which has clearly mentioned in the discharge slip. The Patient was again referred by Op No.2 on 18.5.2012 for diminishing of vision in left eye. His vision was again checked and found to be 6/9 in left eye. The patient thereafter visited on 25.5.2012 and condition was same and as long as the patient came to OP doctor for follow up, residual cortex was not obstructing his vision. The complainant made a complaint to OP No.2 on 6.6.2012 whereby he was referred to Retina Specialist at Kapil Eye Hospital Ambala City who after examination of the patient had mentioned that patient may need cortex removal which was removed on 7.7.2012. This fact has clearly been recorded in Annexure-1 (filed by complainant issued by Kapil Hospital, Ambala City) that it was residual cortex. The complainant is mis interpreting this word residual cortex with residual cataract, despite the fact that his misunderstanding was discussed and removed during proceedings discussion before OP No.2. The complainant may examine Dr. Ruchi Mittal c/o Kapil Hospital Ambala City or even may file her affidavit to this effect. The reasonable degree of the skill and care with due diligence was used/ adopted by the OP No.1 while 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 and 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 & skill.  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 Cover Note No. 825445 for the period from 26.8.2011 to 25.8.2012 which has not been impleaded as party to the complaint though he is necessary party. Accordingly, the complainant impleaded the Insurance Company as OP No. 3 by filing amended title and OP No.3 was  also summoned in this case to put their version, if any.

4.                     OP No.2 filed written statement wherein it is admitted to the extent that the answering Op has referred the patient for treatment to OP No.1 as per wishes of complainant as the answering OP has also suggested the name of other hospitals which was recognized by the department. It has been further urged that the complainant made a complaint before the answering OP and he again referred the complainant to OP No.1 for further treatment as per the wishes of complainant on 18.5.2012. It is further admitted that the answering OP has also received a complaint from the complainant on 6.6.2012 and on the request of complainant, he was referred to Kapil Eye Hospital, Ambala, which was recognized by the department. The answering OP further submitted that after receiving the complaint from the complainant he immediately intimated the OP No.1 and asked him to submit explanation. The respondent doctor vide his reply dated 13.6.2012 submitted his explanation, which was disclosed to the complainant. The explanation submitted by OP No.1 to the answering OP is attached herewith for the kind perusal of this Forum. It is also admitted that the complainant was referred by the answering OP to Kapil Eye Hospital, Ambala for further treatment. There is no negligence on the part of answering OP, so the answering OP is not liable in any manner and prayed for dismissal of complaint qua the answering OP in the interest of justice.

5.                     OP No.3 also filed written statement separately urging therein that the present complaint is not maintainable against the answering OP as there is no deficiency in service and negligence on the part of answering OP and the same is liable to be dismissed. The present complaint has been filed by concealing the true facts from this ld. Forum, hence the same is liable to be dismissed. This Forum has got no jurisdiction to entertain, adjudicate and decide the present complaint. The complaint involves complicated issues which cannot be decided in a summary proceeding and requires to be decided by the Civil Court where the complaint can be effectively decided. The allegations mentioned in the complaint are false, wrong & hence denied. The complainant be put to strict proof of the same. The treatment given to the patient by OP No.1 was as per medical norms, standards and technique. The contents of complaint are manipulated one which are wrong and denied. The suppositions and assumptions have no place in law. As far as professional indemnity policy of Dr. Dinesh Goel from the answering OP is concerned, the same is admitted w.e.f. 26.8.2011 to 25.8.2012. However, the liability under the complaint in question is specifically and vehemently denied and prayed for dismissal of complaint. 

6.                     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-8 and closed evidence on behalf of complainant whereas on the other hand, counsel for OP No.1 has tendered affidavit of Dr. Dinesh Goel as Annexure RX, and documents as Annexures R-1 to  R-3 and closed the evidence on behalf of OP No.1. Counsel for OP No.2 also tendered documents as Annexure R.2/1 to R2/9 and closed evidence on behalf of OP No.2. Counsel for OP No.3 also tendered affidavit of Shri N.K.Goel, Sr. Divisional Manager as Annexure R3/X and document as Annexure R3/1 and closed the evidence on behalf of OP No.3.

7.                     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 had operated the left eye of the complainant as he had been diagnosed cataract in his left eye but while operating the eye of complainant, the OP No.1 was continuously talking on his telephone and was quarreling with someone. On this, the complainant requested the OP No.1 to concentrate on the operation but instead of conceding the request of complainant, the OP No.1 became annoyed and told the complainant that he very well know how to operate his eye and the OP No.1 told the complainant to remain keep quite. Learned counsel for the complainant further argued that  after operation, the complainant regularly visited the OP No.1 as OPD patient and taken medicines and eye drops as per prescription of Op No.1 but it was very astonishing to the complainant that instead of improving the eye sight, the eye sight of the operated eye was completely vanished and the complainant was unable to see anything from the said eye. The complainant finding no other alternative, made a complaint to Op No.2 on 6.6.2012 and requested to refer him to another doctor or eye hospital who referred him to Ratina specialist i.e. Kapil Eye Hospital, Ambala City, where the left eye of the complainant was again operated on 7.7.2012 and removed the residual cataract and from the medical report of Kapil Eye Hospital, Ambala City, it is also quite clear that the OP No.1 left the cataract in the eye of the complainant during operation  and at the time of operation the behavior of OP No.1 was not professional as he was quarrelling with someone on telephone and the said act & conduct of the OP doctor is palpably clearly wrong & illegal and he is guilty of the deficient and negligent services to the complainant.   To further strengthen his case, complainant’s counsel submitted a case law delivered by Hon’ble Supreme Court of India in Civil Appeal No. 368 of 2013 titled as A.Srimannarayana versus Dasari Santakumari & Anr. 2013(2) Civil Court Cases page 244 wherein it has been held that “Medical Negligence-Consumer Complaint- Opinion of an expert before registration of a consumer complaint is not required-Requirement of opinion of an expert as observed in Jacob Mathew case is limited only with regard to prosecution of doctors for the offence u/s 304-A IPC”.

8.                     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 was supposed to do which he did not do? What the OP was not supposed to do, which he did? What were other lines of treatment etc.? Learned counsel for the OP No.1 further argued that Dr. Ruchi Mittal wife of Dr. Vikas Mittal MBBS, MS. Retina Specialist who was working in Kapil Hospital, Centre for Advanced Eye Care, 240, Vivek Vihar, Opp. PWD Rest House, Civil Lines, Ambala City, has also tendered an affidavit that she had examined the patient Bhupinder Singh in Kapil Hospital who was referred through ECHS for Retina Detachment. On examination, the patient was found not have Retina Detachment, but he was having Cortex residual in left eye, which was removed on 7.7.2012. This fact has been clearly mentioned in the records that Vitrectomy done which means that cortex was removed and necessary medicines/eye drops etc. were prescribed to the patient. The cataract surgery performed by operating surgeon was as per medical norms, standards and technique. The reasonable degree of skill and due diligence was used by the operating surgeon in performing/providing the treatment to patient Bhupinder Singh. No negligence has been committed by the operating surgeon during the cataract surgery of patient 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”.

9.                     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 cataract in his left eye 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”.   Besides it, the complainant in Para No.8 of the complaint has alleged that OP No.2 i.e. ECHS Policlinic referred him to Ratina Specialist i.e. Kapil Eye Hospital, Ambala City where the left eye of the complainant was again operated on 7.7.2012 for removing the residual cataract and from the medical report of Kapil Eye Hospital, Ambala City it is quite clear that the OP No.1 left the cataract in the eye of the complainant during operation as at the time of operation the behavior of OP No.1 was not professional as he was quarrelling with someone on telephone whereas Dr. Ruchi Mittal wife of Dr. Vikas Mittal MBBS, MS. Retina Specialist who was working in Kapil Hospital, Centre for Advanced Eye Care, 240, Vivek Vihar, Opp. PWD Rest House, Civil Lines, Ambala City and who dealt with the case of complainant has also tendered an affidavit ( Annexure R-2/9) to the effect that he had examined the patient Bhupinder Singh in Kapil Hospital who was referred through ECHS for Retina Detachment. On examination, the patient was found not have Retina Detachment, but he was having Cortex residual in left eye, which was removed on 7.7.2012. This fact has been clearly mentioned in the records that Vitrectomy done which means that cortex was removed and necessary medicines/eye drops etc. were prescribed to the patient. Aforesaid retina specialist i.e. Dr. Ruchi Mittal wife of Dr. Vikas Mittal of Kapil Hospital MBBS, MS. has also opined that “the cataract surgery performed by operating surgeon was as per medical norms, standards and technique. The reasonable degree of skill and due diligence was used by the operating surgeon in performing/providing the treatment to patient Bhupinder Singh. No negligence has been committed by the operating surgeon during the cataract surgery of patient.”  As such from the perusal of document ‘Annexure R2/9’ i.e. Affidavit of Dr. Ruchi Mittal wife of Dr. Vikas Mittal of Kapil Hospital, Ambala City tendered by OP No.2 in his evidence, it is well proved that the OP No.1 has not committed any negligence in treating/ operating the patient Sh. Bhupinder Singh, 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 authorities A.Srimannarayana vs. Dasari Santkumari & another (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