Complaint filed on: 21-06-2016
Disposed on: 16-08-2017
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM,
OLD DC OFFICE COMPOUND, TUMAKURU-572 101
CC.No.84/2016
DATED THIS THE 16th DAY OF AUGUST 2017
PRESENT
SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT
SMT.GIRIJA, B.A., LADY MEMBER
Complainant: -
M.S.Sreenivasalu
S/o. M.C.Nanjappa,
Aged about 49 years, working as
Manager, Kaveri Grameena Bank, Doddaballapura,
Bengaluru Rural District
Rajeshwari
(By advocate Sri.B.Keshava Reddy)
V/s
Opposite party:-
Dr.T.M.Praveen,
Nayanadhama,
Super Speciality Eye Hospital,
Near Mirji Petro Bunk, Batawadi, Tumakuru Town,
Tumakuru taluk and district
(By advocate Sri.K.S.Shivakumar)
ORDER
SMT.PRATHIBHA. R.K. PRESIDENT
This complaint is filed by the complainant against the OP, under Section 12 of the Consumer Protection Act. The complainant prays to direct the OP to pay compensation of Rs.18,00,000=00 along with interest for the damages and pain caused and grants punitive cost of Rs.10,000=00, in the interest of justice and equity.
2. The brief facts of the complaint is as under.
The complainant submitted that, when he was working as Manager at K.G.B., D.Kymara branch, Madhugiri taluk in the year 2015 and his right eye started paining. Hence, the complainant approached the OP’s Eye Hospital in the month of Jan.2015. The complainant further submitted that, the OP had examined and advised him to install the lens by undergoing CATARACT operation. According to OP’s advice, the complainant was admitted to the hospital on 20-1-2015. And the OP had conducted an operation/surgery to the complainant’s right eye. While discharging from the hospital, the OP had advised the complainant to take follow up treatment and bed-rest. The complainant alleged that, after 20 days, his right eye appeared reddish and swelling and his eye-sight went on diminishing day by day. Hence, the complainant approached the OP complaining about pain in his right eye. The OP had given treatment up to 3-5-2015, but the OP was unable to set-right the pain in the eye and the OP advised the complainant to approach the Prabha Eye Clinic and Research Centre, Bengaluru.
The complainant further submitted that, on the advice of the OP, the complainant approached the doctor at Prabha Eye Clinic and Research Centre, Bengaluru on 5-5-2015 and on the same day, the doctors in the above said hospital examined the complainant and came to the conclusion that, the complainant is suffering from “ Grade Endophthaimitis”. The complainant submitted that, Endophithalmits can develop as a reaction to lens fragments retained in the eye after cataract surgery or to the drugs injected into the eye. The complainant further submitted that, the doctors of the Prabha Eye Clinic and Research Centre, Bengaluru had given treatment to the complainant for the said Grade Endophthaimitis. As per the advice of the said hospital doctors, the complainant had taken follow up treatment by visiting the said hospital on 8-6-2015, 22-6-2015, 15-7-2015, 25-7-2015, 10-8-2015, 24-8-2015, 4-9-2015, 14-9-2015, 28-9-2015, 29-9-2015, 5-10-2015, 24-10-2015, 2-11-2015, 16-11-2015, 30-11-2015, 26-12-2015, 28-12-2015 and 1-1-2016.
The complainant further submitted that, while going for treatment, the complainant has spent Rs.2,000=00 per day. Inspite of the said treatment, the complainant’s right eye could not be cured and the complainant lost his eye sight 100%. The complainant further submitted that, after the operation the OP had give three months treatment, but the OP has not advised for 2nd opinion. As per the scientific investigation done by the Prabha Eye Clinic and Research Centre, Bengaluru, the complainant has been informed that, the said deficiency has been caused to right eye, due to fault in conducting the operation at the first instance by the OP as the equipment and lens used by the OP was not sterilized and due to non-sterilization of the equipments used at the time of operation, the infection has been caused to his right eye and it developed reddishness in his right eye and caused reaction in diminishing his right eye sight. These damages were caused due to the grass negligence on the part of the OP. Due to the negligent act of the OP made the complainant to suffer lot of pain, mental agony and incurred heavy expenses. Hence, the complainant got issued a legal notice to the OP on 27-1-2016 narrating the facts and calling upon the OP to pay compensation of Rs.18,00,000=00 for the damages caused to the complainant. The said notice was duly served on the OP. The OP has neither paid the damages nor replied to the said notice. Hence, the present complaint is filed.
3. After service of notice, the OP has appeared through his counsel and filed objections contending interalia as under.
The OP is denied the averments of the complaint are false and baseless. The OP submitted that, on 16-1-2015, the complainant visited the OP hospital with a history of defective vision on right eye from the past six months. The OP found that, the complainant had bilateral eye Senile Cataract. Hence, the OP advised the complainant to undergo cataract surgery. The OP had conducted the right eye cataract surgery by installing IOL on 22-1-2015 and discharged on the same day and advised the complainant not to take head bath and face wash for not less than ten days and apply prescribed medicines properly. The Op submitted that, the complainant visited hospital on 23-1-2015 and the OP examined the complainant, the complainant visual activity was 6/6/ nil glass i.e. to say 100% vision and cornea of the complainant was clear, anterior chamber was quite and IOL is in position and free from infection. Hence, the OP advised the complainant to come for review after 10 days. The complainant visited the OP hospital on 4-2-2015 and the OP had examined the complainant’s visual activity was 6/6 nil glass i.e. to say 100% vision. The complainant once again advised to review after 30 to 35 days i.e.between 1st March to 8th March and advised to continue the medication as per the advice. The complainant visited the OP hospital on 26-2-2015 and visual activity was 6/6 nil glass i.e. to say 100% vision. On that day spectacles was prescribed and the complainant was advised to stop the medications which were advised while discharging the petitioner. The OP further submitted that, the complainant is a chronic diabetic patient and he may develop diabetic complications advised the complainant to keep the diabetic status under control. The OP advised the complainant to review after six months.
The OP further submitted that, above said aspects clearly testify that in the post operative period the complainant has no complaints out of surgery and surgery was successful. If there was any infection caused while conducting the surgery the same would have manifested by this time. But no such infection was detected till 3rd visit. Hence the OP cannot be held responsible for further consequences.
The OP further submitted that, the complainant visited the OP hospital on 19-3-2015 with a complaint of mild pain and reddishness. The OP examined the complainant and found visual activity was 6/6/ nil glass i.e. to say 100% vision. The OP noticed mild congestions (reddishness) and found cornea was clear, anterior chamber showing mild inflammatory reaction. The OP advised the treatment and given the medicine and advised to control the diabetics and requested to review after one week.
The OP further submitted that, after one week i.e. on 29-3-2015, the complainant appeared the Eye Hospital of the OP and on examination the complainant was in good condition and there were no complaints. On 2-4-2015 the complainant approached the OP with a complaint of mild pain and reddishness. The OP once again noticed that the complainant found visual activity was 6/9 nil glass and mild congestions (reddishness) and found cornea was clear, anterior chamber showing mild inflammatory reaction. The OP with abundant caution washed the anterior chamber and intra cameral and antibiotics were given and the complainant was advised to control the diabetics and requested to review after one week. Thereafter the complainant did not approach the OP with any of the complaints.
The OP further submitted that, the OP advised the complainant that, diabetic patients have less immunity at various levels and may be more susceptible to infection after ocular surgery, hence the OPO warned the complainant to keep the diabetics under control and to contact the doctor who is treating the diabetics regularly. On 4-5-2015 the complainant approached the OP with a complaint of severe pain reddishness and blurring of vision. On that day also the vision of the complainant was 6/9, cells +++, flare +++, fibrin strands anterior to IOL, Vitreous cells++. Hence the OP suspected that complainant might have developed mild endophthalmitis, and referred the complainant for higher treatment.
The OP further submitted that, the complainant developed the endophthalmities, not because of any fault in conducting the operation by the OP. Earlier to operation the OP has taken utmost precaution and the operation-theater will be kept in highly hygienic condition and the instruments used are highly sterilized by using modern technology.
The OP further submitted that, the complainant has developed the endophthalmities because of the reason his diabetics was not under his control, due to which the complainant developed gluteal abscess and for that gluteal abscess the complainant obtained the treatment elsewhere in the month of April 2015. There afterward the complainant developed the suspected eye infection. The suspected infection may also causes because of the reasons like exogenous and endogenous factors may lead to endophthalmities.
The OP further submitted that, while carrying out the above said surgery, the OP exercised his skill with higher competence and taken all care and caution and operated the complainant with utmost skill and knowledge. There is no other opinion from another expert showing that because of the negligent act of the OP, the complainant suffered and in the absence of another expert opinion, the OP cannot be held for any negligence. The procedure which was adopted by this OP was one which was acceptable to medical sciences as on the date of carrying surgery to the complainant. Hence it is prayed to dismiss the complaint with cost, in the interest of justice and equity.
4. In the course of enquiry into the complaint, the complainant and OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. Both parties have produced documents which were marked as Ex-C1 to Ex-C5 and Ex-R1 (containing 9 sheets). We have heard the arguments of both sides and perused the documents and posted the case for order.
5. Based on the above materials, the following points will arise for our consideration.
- Whether there was deficiency in service on the part of the OP as alleged by the complainant?
- What Order?
6. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: As per the final order below.
REASONS
7. On perusal of the averments of complaint, objections of the OP and affidavit evidence of both parties, it is an admitted fact that, on 22-1-2015 the OP had conducted an operation and installed IOL to the complainant’s right eye and on the same day, the complainant was discharged from the OP eye hospital. As per Ex-C1/R1 discharge summary issued by the OP eye hospital.
8. The complainant allegation is that, the complainant got pain, reddishness and swelling in his right eye after 20 days of his operation. The complainant alleged that, day by day his right eye went on diminishing upto three months. The OP was unable to set-right the above said problem and advised to approach the Prabha Eye Clinic and Research Centre, Bengaluru. The Prabha Eye Clinic doctors had conducted the examination on 5-5-2015 and came to conclusion that “Grade Endophthaimitis”. As per the scientific investigation done by the Prabha Eye Clinic and Research Centre, this had occurred due to fault in conducting the operation by the OP, as the equipments and lens used by the OP were not sterilized. Due to non-sterilization of the equipments used at the time of operation, the infection has been caused to his right eye and developed reddishness in his right eye and caused reaction in diminishing his right eye sight. The damages were caused due to the gross negligence on the part of the OP. To substantiate the above said facts, the complainant has produced Prabha Eye Clinic and Research Centre, Bengaluru Visiting Summary, it is marked as Ex-C5.
9. On perusal of the Visit Summary/Ex-C5 issued by the Prabha Eye Clinic and Research Centre, Bengaluru, one Dr.Kalpana.B.Murthy had stated in the opinion column “od-granulomatous kps inferiorly, fibrin broken and the lens-vit cells + looks like low grade endophthalmitis, known diabetic, h/o gluteal abscess (no records regarding organism/sensitivity) ac tap followed by intravitreal antibiotics and watch slitiamp photo (od)”. On careful reading of the above opinion column, nowhere Dr.Kalpana.B.Murthy has stated that, this had occurred due to fault in conducting the operation by the OP as the equipments and lens used by the OP were not sterilized and due to non-sterilization of the equipments used at the time of operation has been developed and caused reddishness in his right eye and caused reaction in diminishing his right eye sight. Hence, the allegations made by the complainant against the OP cannot be accepted.
10. Admittedly, the complainant had operated on 22-1-2015 and visited the OP hospital for treatment on 4-2-2015, 26-2-2015, 19-3-2015, 29-3-2015, 2-4-2015 and 4-5-2015, wherein it is found that, the complainant’s right eye was absolutely fine. It is only on 19-3-2015 the complainant was suffering pain and reddishness. At the point of time, the complainant was suffering from high diabetics disease; hence the complainant was advised to keep diabetics control. It is only on 4-5-2015 the complainant was referred to Prabha Eye Clinic and Research Center, Bengaluru for higher treatment as the OP suspected the complainant might have developed mild endophthalmities. The Dr.Kalpana B Murthy who had examined the complainant had written in the opinion column looks like low grade endophthalmities it may be due to diabetics, h/o gluteal abscess. Further, the complainant had not produced the second opinion by any independent doctor. Hence, in the absence of any incriminate medical export report given by an independent doctor, we cannot hold that, the negligence is caused by the OP.
11. In this behalf, the learned counsel appearing for the OP also produced citation as under:
- 2011 NCJ 673 (NC) – H.R.Megha –vs- Dr.Jasjit Chhachhi Nursing Home, it is observed as under:
“Claim for Medical Negligence –Duty of Forum-Held- A Consumer Forum is duty bound to obtain expert opinion in each case of alleged medical negligence”
12. So looking to the case of complainant on the back ground of obiter dicta of said decision, we are of the view that, the yardstick of the said decision is squarely applicable to the present case of complainant.
13. On the other hand, the OP has shown with material evidence that the OP is a reputed qualified surgeon of Ophthalmology and he has taken care and caution while doing Cataract operation of complainant and advised the complainant to take medicine properly and control the diabetics. Unfortunately, the complainant did not act as per advice of OP. The conducts of complainant in not control the diabetics shows negligence of complainant himself and for negligence or carelessness of complainant, the OP cannot be blamed for dereliction of duty as a doctor. So looking at the material evidence of both parties with more care and precision, we are of the considered opinion that, the oral and documentary evidence of OP are more believable trustworthy and acted upon than the material evidence of complainant. The complainant seeking relief on the ground of medical negligence has miserably failed to prove the medical negligence of OP by placing convincing evidence. Accordingly, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. No costs.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 16th day of August 2017).
LADY MEMBER PRESIDENT
