Haryana

Yamunanagar

CC/208/2011

Parshadi Ram S/o Nathua Alias Nathu - Complainant(s)

Versus

Dr.S.L. Bansal - Opp.Party(s)

Sanjeev Singla

09 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                            Complaint No. .. .…208  of 2011.

                                                                                             Date of institution: ….11.3.2011.

                                                                                             Date of decision: 9.4.2015

Parshadi Ram son of Shri Nathua alias Nathu, resident of 728, Durga Garden, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                                       …Complainant.

                                    Versus

 

1. Dr. S.L.Bansal, Eye-Q, Super Speciality Eye Hospital, Near Sapphire Hotel, Yamuna Nagar.  
2. Oriental Insurance Company Ltd. Opposite Madhu Hotel, Yamuna Nagar through its Branch Manager ( Insurance Policy No. & Cover Note No. 680370 w.e.f 24.12.2009 to 23.12.2010.)    
3. United India Insurance Company Ltd., 54, Janpath, Connaught Palace, New Delhi   ( Insurance Company of respondent No.1 Professional Indemnity Insurance Policy holder bearing No. 040100/46/10/35/00000114 w.e.f. 7.4.2010 to 6.4.2011).

                                                                                                           …Opposite parties.

                        Complaint under section 12 of

                        the Consumer Protection Act.

 

CORAM:          SH. A.K.SARDANA PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Sanjiv Singhal, Advocate, counsel for complainant.   

              Sh. S.C.Jindal, Advocate, counsel for OP No. 1 

              Sh. Amit Bansal, Advocate, counsel for OP No. 2.

              Sh. Brijesh Chauhan, Advocate, counsel for OP No.3.

 

ORDER

 

                        Brief facts leading to the institution of the present complaint are that the eye sight of the right eye of the complainant was lost and on 22.12.2010, he approached to the OP No.1 for the treatment of his right eye and after examining, the OP No.1 stated that eye sight of the right eye can return back only after getting a lens planted and for this purposes, complainant have to bear a sum of Rs. 6000/- for the lens, his fee & charges of medicines etc. So after getting deposited Rs. 6000/-, the OP No.1. got him admitted on 22.12.2010 in his hospital vide MR No. 04206, Reg. No.221 but the OP  No.1 did not issue any receipt regarding deposition of Rs. 6000/- and while operating upon the right eye of the complainant, due to negligence, the OP doctor removed eye ball to fix the lens & damaged the fundus as a result of which bleeding started therefrom and the complainant while in semi unconscious condition heard himself whispering the OP No.1 with another doctor that due to their negligence, the fundus of the right eye has damaged. The complainant completely followed the instructions given by the OP  No.1 after the operation but even inspite of plantation of lens in the right eye, the sight could not be improved. As & when the complainant narrated the OP that nothing is visible from right eye, the OP prolonged the matter on one pretext or the other with the remarks that it will take some time to work but the eye sight of the complainant did not improved. Thereafter the complainant contacted several doctors and showed his operated eye and the doctors to whom he contacted, informed the complainant that the operation of right eye of the complainant has not been performed properly. In this way, the OP No.1 is deficient and negligent in providing proper services to the complainant and further is guilty of indulging in unfair trade restrictive practices. In the end, complainant has prayed for issuing a direction to the OPs to pay a sum of Rs. 50,000/- as compensation on account of cost of lens, amount spent on operation, medicines, special diets and pains, sufferings etc. to the sole negligence of OP and also to pay a sum of Rs. 10,000/- 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 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 United India Insurance Company ltd. 54^th Janpath, Connaught Place, New Delhi through its professional indemnity policy No. 040100/46/10/35/000000114 effective from 7.4.2010 to 6.4.2011 and from the Oriental Insurance Company ltd. opposite Madhu Hotel, Yamuna Nagar vide cover note No. 680370 w.e.f. 24.12.2009 to 23.12.2010, therefore, the insurers are 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 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 30 years after Post-Graduation Course in various clinical settings. The OP doctor obtained his MBBS in 1975 and completed his MS in 1979 with Silver Medal from PGI Chandigarh. The answering OP is doing his private practice since 1986. The operation theatre of OP is Air Conditioned one, equipped with modern facilities, equipments and life saving drugs. The patient was brought to the OP No.1 hospital on 22.12.2010 in the morning who told that he had poor vision in the right eye for the last some times. He was examined and found to have advanced cataract in the right eye. 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 and his son Mukesh. After getting verbal consent from the complainant, well informed written consent was got signed from the patient/complainant and his son Mukesh for surgical treatment. Thereafter operation theatre preparations were set in motion, the necessary eye drops were put in the concerned eye and betadine cleaning of the area ( eye and right half of the face) was done. The patient was taken up for cataract surgery on 22.12.2010 in the hospital of OP. The surgery was performed and it was absolutely uneventful. The pad and shield were applied and the discharge slip supplied to the patient and patient was sent to his home with the advice to start the oral medicines. On first follow up date, the patient had a vision of accurate Projection of Light and the patient was put on the required medical therapy. After this the patient visited the hospital on 28.12.2010 when the projection of light was again accurate. The Intra ocular Pressure was recorded as 13 mm of Hg (Nromal). Again the patient was put on required treatment. On his subsequent visit on 1.1.2011. it revealed that the Fundus details were not clear. Accordingly, the patient was shown to the Retina Specialist who diagnosed the cause of non improving vision as Vitreous Heamorrhage; therefore, an ultra sound of the right eye was obtained and this showed no retinal detachment but only Vitreous Heamorrhage.  On 24.1.2011, the patient visited Jawahar Eye and ENT Hospital Merrut where the doctor concerned diagnosed the problem as Vitreous Haemorrhage ( same as the OP hospital’s doctor had diagnosed on 12.1.2011.). As per indoor patient record, the patient next visited OP hospital on 27.1.2011 and showed records from Merrut Hospital documents which suggested that there was retinal detachment. This record is with the patient. The retinal surgeon of OP hospital also diagnosed the problem as retinal detachment. The patient was advised to undergo detachment surgery but he never came to the OP hospital again. 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, 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 cover note No. 680370 w.e.f. 24.12.2009 to 23.12.2010 and from the United India Insurance Company ltd. 54^th Janpath, Connaught Place, New Delhi through its professional indemnity policy No. 040100/46/10/35/000000114 effective from 7.4.2010 to 6.4.2011 which have not been impleaded as parties to the complaint though they are necessary parties. Accordingly, the complainant impleaded them as OP No.2 & 3 respectively by filing amended title and they were also summoned in this case to put their version, if any.

4.                     OP No.2 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 OP No.1. The OP No.1 is a well educated, professional, and efficient doctor and he gave best possible treatment to the complainant. Complainant is not entitled for any compensation as alleged. The complainant has failed to show any reason as to why any of the relief as prayed for in the complaint should be granted in favour of the complainant and as such this instant case should be dismissed with exemplary costs. The complainant has utilized this Hon’ble Forum to harass the answering OP. The complaint in this instance case is frivolous and any order in favour of the complainant will lead to miscarriage of justice and prayed for dismissal of complaint with costs.    

5.                     OP No.3 filed written statement wherein it was admitted that the OP No.1 Dr. S.L.Bansal,  was insured with the answering OP during the period, the patient Parshadi Ram was treated by OP No.1 and answering OP accepts the written statement of OP No.1 in totality and the same be considered as its written statement. It has been prayed that the complainant is not entitled to get any alleged amount of compensation in view of the above facts and circumstances of the case.

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 C4 and closed evidence on behalf of complainant whereas on the other hand, counsel for OP No.1 has tendered affidavit of Dr. Sohan Lal Bansal as Annexure RX, and documents as Annexures R-1 to  R-4 and closed the evidence on behalf of OP No.1. Counsel for OP No.2 also tendered affidavit of Shri N.K.Goel, Sr. Divisional Manager as Annexure R2/X and document as Annexure R.2/1 and closed evidence on behalf of OP No.2. Counsel for OP No.3 also tendered affidavit of Shri Om Parkash, 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 right eye of the complainant and due to negligence of OP doctor while removing eye ball to fix the lens, damaged the fundus resulting into bleeding there -from. The complainant was told that he has been operated successfully and was discharged from the hospital on the same day. The complainant completely followed the instructions given by the OP doctor after the operation but even inspite of plantation of lens in the right eye, the sight could not be improved. Learned counsel for the complainant further argued that the complainant contacted several doctors and showed his operated eye and the doctors to whom the complainant contacted told the complainant that the operation of his right eye has not been performed properly.  The complainant finding no other alternative sought second opinion from other doctor of Jawahar Eye & E.N.T. Hospital and laser Centre, Meerut Cantt. and on checking the eye of the complainant, said doctor of Meerut told that the operation of complainant failed due to sole negligence of the OP doctor.

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 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 previous surgeon Dr. S.L.Bansal 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 Munni Devi versus R.P.Tondon ( Dr), IV (2006) CPJ page 259 (NC) wherein it has been held that Eye operation for cataract-Redness developed and eye swelled at post operation stage-Vision lost- OP found it to be case of uveitis and prescribed steroid injection- After taking one injection, she did not turn up for second one- No evidence that uveitis caused due to surgical trauma-Admittedly, complainant voluntarily approached other hospitals of her choice, thereby abandoning services of OP- Not adhering to advice of OP to take injection in time amounts to carelessness on her part- No deficiency in pre or post operative care by OP-No medical negligence 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 his right 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.  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 Munni Devi vs. R.P. Tondon (Dr), 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: 9.4.2015

                                                                                          (A.K.SARDANA)

                                                                                           PRESIDENT

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER