Complaint filed on: 22.03.2010

                                                      Disposed on: 15.12.2016

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.616/2010

DATED THIS THE 15^th DAY OF DECEMBER 2016

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant: -                     

Smt.Chikkamarakka,

W/o Chinnaswamy,

Aged about 65 years,

Residing at:No.27, 2^nd Main, 2^nd Cross, Hosahalli, Vijayanagara

Bengaluru-560040

By H.P.Leeladhar, Adv.

V/s

Opposite party:-       

Dr.K.M.Suresh, MBBS., M.S., (OPH)

Medical Director,

Vidhya Eye Hospital,

No.47/E, 15^th Main,

M.C.Road,

Vijayanagara

Bengaluru-560040

By B.V.Vidyulatha, Adv.

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

          The Complainant has been alleging the medical negligence in the operations on her right eye conducted by the Opposite party/Dr.K.M.Suresh and has been claiming the unconditional apology from him alongwith total damages of Rs.8 lakhs with interest and costs.

          2. The case of the Complainant in brief is that she being 65 years old aged woman, due to her cataract/eye problem, approached the Opposite party/Dr. K.M.Suresh in June 2009 and he advised her on 29.06.2009 to admit to his hospital for operation. She was operated on 02.07.2009 and took follow up treatments. Her eye sight when became very week, the Doctor again advised and operated on her second time on 03.09.2009 admitting his mistake. She was subjected to follow up checkups. 20 days thereafter again operation was conducted third time by him. The Doctor then advised and injected the American medicine and then also no improvement was found. On the contrary, she lost her eye sight and has been suffering from excruciating eye pain.  The treatment given by the Doctor was far below the required standards with wrong diagnoses and faulty medicines which made her to suffer with defects of eye sight and thereby the service of Doctor suffers from deficiency. She sent legal notice dated 08.12.2009 and it was not replied by Doctor. Hence this complaint.

          3. The Opposite party/Dr.K.M.Suresh has questioned the maintainability of this complaint contending that there is no cause of action and it suffers from non-joinder of necessary parties. He further contents that the Complainant visited finally on 17.10.2009 and no medical records were produced in support of further treatment till 09.11.2009 taken at Narayana Nethralaya Hospital. He did not answer the legal notice for want of records and particulars about the alleged treatment. She has not produced the documents in her possession and it is only to mislead this court. She had approached with history of diminution of vision in the right eye and her left eye was pseudophakic. She was a diabetic. She was operated on 02.07.2009 under topical anesthesia with IOL implantation and it was uneventful and he operated with due diligence with highest standards of accepted medical practice and procedure. He attended for her follow up treatments on 03.07.2009 to till 24.07.2009. Second time she came with new complaint of diminution of vision from 8-9 days. She was diagnosed to have IU and Posterior uveitis of unknown origin with fibrous exudates. Then she was treated on day care treatment for six days, in order to prevent retinal detachment due to impending traction, on 11.09.2009, Posterior vitrectomy with AC lens implantation was conducted, after conducting B-scan, to ascertain that the retina was healthy. It was uneventful. She has not produced laboratory investigation reports, discharge summary dated 11.09.2009 possessed by her. Until 16.09.2009, there was decrease of fibrous exudates. She had a vision of PL and PR for about 20 days, thereafter the vision was C.F.5mts on 09.10.2009 and 6/60 on 14.10.2009 and on 17.10.2009. Thereafter she was advised follow up after a week, but after 17.10.2009 she did not come for follow up treatments. She has not produced the prescriptions issued by him. On 17.11.2009, the daughter of Complainant stating that she has misplaced the medical records, paid the bills and claimed the certificate for claiming reimbursement which made him to issue certificate.  She has produced documents 2 to 6. If really the records were lost, Narayana Nethralaya Hospital would have sought for inspection of the hospital records or would have made effort to discuss with him and would not have blindly treated her without looking in to the previous medical records. It shows that she has concealed about her treatment.   

          3 b). He being the student of Prof. S.Chandrashekhara Shetty, a Gold Medalist completed his M.S(OPH) from Minto Hospital, Bengaluru in 1992 and passed the examination of his field in the exemption of U.K/London in 1995 and worked as Asst. Professor till 1998. Till then he had conducted 10,000 cataract surgeries and 300 to 350 vitreous surgeries apart from number of rare surgeries involving at most skill and command over the subject. He had not shown any negligence. The case is filed on false grounds with an intention of harassment and extra money from him. Hence it is liable to be dismissed with costs.

          4. Affidavit and further affidavit of both the Complainant and the Opposite party were filed. As expert witness Dr.Shivaprasad Reddy of Minto Hospital was examined as CW-1. The Complainant has relied on Ex-A1 to Ex-A9 documents. The Opposite party has relied on Ex-B1 to Ex-B20 documents. The expert has relied on Ex-C1 and Ex-C2 documents. Written arguments were also filed by both sides. The Opposite party relied on number of reported decisions. Arguments of the learned counsel of the Opposite party were heard. Perused the records.

5. The consumer disputes that arise for consideration are as follows:

1) Whether there is deficiency of service and medical

    negligence by the opposite party/Dr.K.M.Suresh in

    conducting eye operations and while giving further

    treatment on complainant from  02.07.2009 till   

    17.10.2009 ?

     2) Whether the complainant suffered because of such

medical negligence as alleged?

        3) Whether the complainant is entitled to the relief as

prayed for?

     4) To what order or the parties are entitled?

6. Answers to the above consumer disputes are as under:

1) Negative

2) Negative

3) Negative

4. As per final order – for the following     

REASONS

          7. Consumer Disputes No.1, 2 & 3 : The undisputed facts reveal that the Opposite party/Dr.K.M.Suresh completed his M.B.B.S in 1986, M.S.(Ophthalmology) in 1990 from Bengaluru University as shown in certificate issued by Karnataka Medical Council marked as Ex-B3. He has been running Vidya Eye Clinic at Vijayanagar, Bengaluru as supported by medical records of both the sides and also as mentioned in Ex-B6 & Ex-B7. He was working as Asst. Professor till 1998 in Kempegowda Institute of Medical Sciences, Bengaluru as per Ex-B5. He had attended Moorfields  Eye Hospital of London to observe special surgical unit work for 10 days in 1995 as per Ex-B4. He had privilege of completing his P.G. course under the guidance of Dr.S.Chandrashekhara Shetty as per certificate Ex-B1 and Ex-B2.

          8. It is admitted that the Complainant Smt. Chikkamarakka, aged 65 years was diagnosed as suffering from cataract (right eye), pseudophakic (left eye), diminution of vision (right eye). When she sought the medical advice on 29.06.2009 from Dr.K.M.Suresh/Opposite party, she was advised to undergo cataract surgery of right eye. She underwent cataract surgery of right eye on 02.07.2009 by the Opposite party and was discharged on the same day as supported by discharge summary and bill Ex-B6 and Ex-B7. Her further follow up treatments till 24.07.2009 was mentioning in Ex-B8/Ex-B17/Ex-A5 at the cost of Rs.15,000/- as per Ex-A2/Ex-B7 bill.

          9. It is also undisputed that she was operated for second time on 04.09.2009 and took treatment till 07.09.2009 relating to Post. Uveitis, Grams stain as supported by Ex-B9, Ex-B18.

          10. Third operation was also conducted on her right eye on 11.09.2009 as supported by Ex-B10 and Ex-B11. Follow up treatments were also provided till 20.09.2009 as per Ex-B11 and till 17.10.2009 as per Ex-B20 & Ex-B21. The carbon copies of bills of all the three operations are available in the bill books number Ex-B19 & Ex-B20 (same exhibits marked twice) maintained in Opposite party hospital and also as per their xerox copies as per Ex-B13, Ex-B14, Ex-B15. The physiotherapy details till 17.10.2009 are available in Ex-B16. The Complainant has relied on number of prescription slips written on various types of chits marked Ex-A1, Ex-A3, Ex-A4.

          11. The Complainant thereafter only started making allegations against the Dr.K.M.Suresh/Opposite party contending that service rendered by Dr.K.M.Suresh was far below the required standards and that he had conducted operations wrongly with wrong diagnoses and thereby she lost her eye sight itself. The Opposite party/Dr.K.M.Suresh has produced the copies of the medical records about the treatment given by him and also the copies of documents to show that she without furnishing previous history might have approached Narayana Nethralaya Hospital.

          12. The Opposite party/Dr.K.M.Suresh has given certificate as per Ex-A6 dated 17.11.2009 which is signed by the daughter of patient/Complainant, in which it is stated that after 25 days of implantation of IOL for right eye the Complainant developed fibrous exudate formation which did not resolve medication Posterior vitrectomy was done for the same. There was further fibrous exudates formation for which mid vitrectomy was done with intravitreal injection of fibronolytic agent. She had a vision of PL and PR for about 21 days post operatively. She is due of Rs.80,000/- to the hospital.

          13. In the meantime it appears from Ex-A7 number of medical prescription slips of Narayana Nethralaya Hospital with discharge summary that on 23.11.2009 the complainant after getting admission in to Narayana Nethralaya Hospital was operated on 23.11.2009 on her right eye and got discharged on 24.11.2009 with an advice for taking two weeks rest by strictly following the instructions given for using of medicines. The said slips also show that she started taking medicals as per prescription slips from 09.11.2009 till she was admitted and discharged on 24.11.2009 and thereafter also till 30.11.2009. The slip as per Ex-A7q signed by Dr. Hadi M Khazaei  shows that the Complainant had diagnosed as having painful blind eye and hence excruciation implantation was done by operation at the cost of Rs.20,000/-. Ex-A7r certificate issued by Narayana Nethralaya Hospital shows that on 09.11.2009 she approached the hospital with right eye Phonisis bulbi and with left eye showing Epitrelias bulbi and then she was diagnosed to have left eye early corneal decompensation due to ? pre-existing Fuctis/? surgical induced. She was also advised to use hyper sol eye drops and ointment at night.

          14. On 19.11.2010 the Complainant had addressed the letter as per Ex-A9 to Dr.K.M.Suresh reminding him of her treatments/operations dated 02.07.2009/03.09.2009 and about third operation conducted 20 days thereafter and requested for issue of case sheets/records/prescription slips of all the three surgeries.  

15. The Complainant by suggesting the name of Dr.Shivaprasad Reddy got him examined as CW-1. CW-1 Dr.Shivaprasad Reddy, the Director/Medical Superintendent of Minto Ophthalmic Hospital from 2010 in his evidence, in response to the reference of medical documents of this case from this Forum has stated that by getting the required medical documents thereafter gave the opinion report dtd.18.07.2011 as per Ex-C1. In Ex-C1 he has given the opinion that there is no negligence on the part of Dr.K.M.Suresh in connection with the case of Smt.Chikkamarakka. The said witness Dr.Shivaprasad Reddy was appointed as suggested by the Complainant and thereby he was secured by writing Ex-C2 letter.

The evidence of CW-1 supports the following observations made in F.A.No.214/1993 Hon’ble National Commission:

“mere assertion by the complainants that the findings of the reports forwarded to Dr.Sundaram were wrong becomes insufficient. In the absence of evidence of medical expert, when the case summary sheet in between 1-8-1991 to 14-8-1991 discloses periodically monitoring of renal functions found to be perfectly normal”.

        Hence in the presence of DW-1 and CW-1 and the supported cogent materials, placed in favour of un-eventful operations, her evidence gets no importance.

          16. The complainant has produced Ex-A7 slips and discharge summary of Narayana Nethralaya Hospital consisting of the notes by the Doctors therein. The contents of these documents have no materials to believe the alleged negligence on the part of the opposite party/Dr.K.M.Suresh. The certificate of Dr.Thungappa annexed with Ex-A7 shows that the Complainant came to him on 09.11.2009 about the complaints of both the eyes and then she was advised to use drops. There is no evidence through Ex-A7 documents that Dr.Thungappa found defects in the earlier operations or enquired about the earlier operations. There is no reference in Ex-A7 set of documents that she has undergone earlier three operations conducted by Dr.K.M.Suresh.

17. Such being the case the burden is heavy on the complainant to connect the alleged deficiency of Dr.K.M.Suresh/opposite party as observed in K.S.Bhatia V/s Jeevan Hospital dtd:17-7-2003 of Hon’ble National Commission,

“as settled by Apex Court Privy Council Judgments, the specific act of negligence has to be alleged in Medical negligence cases and to prove as to how it amounts to negligence and how the action of doctor was not as per accepted medical practices”.

18. It appears that she has not consulted after 17.10.2009 but without informing/intimation to Dr.K.M.Suresh directly came to Dr.Thungappa on 09.11.2009, with the complaint of pain in both the eyes.      If the deficiency was there, connecting it to the first three operations, the complainant ought to have consulted immediately atleast within a week to complain about the alleged ill-health regarding alleged pain.  The connecting link about the alleged deficiency is missing in-between the period of the said third and fourth operation.

          19. Non-compliance of the medical advice definitely gives raise to side effects or its consequences.  Such acts amount to voluntary contribution by the patient herself.  The possibility of such contribution cannot be set-aside.  If her first contention is believed, that she was in possession of number of opinion taken from the competent reliable persons, non-production of the same before this Forum goes to the root of her case.

 20. CW-1 has deposed that depending upon the health conditions of the patient and the associated problems the necessity arises about for multiplicity of operations on eyes also. He also stated that he cannot call the chits Ex-A3 & Ex-A4 as prescription slips and is not ready to say that they were issued by Doctors. Admittedly he has not examined the Complainant. The Complainant who filed the affidavit evidence and further affidavit evidence could have appeared before the court when CW-1 was examined or could have appeared before him before submission of his reports. Thereby the materials placed by her are not sufficient to prove the alleged deficiency in service/alleged medical negligence by Dr.K.M.Suresh. There is no reason to disbelieve the contents of hospital records of opposite party. There are no materials to show that because of first three operations only the Complainant was constrained to suffer pain and hardship and because of that reason she contacted Narayana Nethralaya Hospital. Thereby she has failed to establish the Consumer Disputes No.1, 2 & 3. Accordingly Consumer Disputes No.1, 2 & 3 are answered in the negative.     

21. Consumer Dispute No.4: Non-disclosure of facts about operations conducted by Dr.K.M.Suresh when the Complainant approached Narayana Nethralaya Hospital on 11.09.2009 shows no unusual thing had happened because of earlier operations. It is observed in F.A.No.266/1994, dtd:18-8-1998 of Hon’ble National Commission,

 “the materials placed on record establishes that no unusual thing had happened and no negligence was shown by the opposite parties. After the delivery, the complainant was kept in the Hospital up to 11^th  July, 1992 and was to be discharged on that date, but at the request of the complainants, she was kept for two more days”.

It is observed in Appeal (Criminal) 144-145/2004, Hon’ble Supreme Court dtd:5-8-2005. 

“The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. It is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill.   At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil”.

22. Such being the case the Opposite party/Dr.K.M.Suresh cannot be stated as not exercised due care caution in conducted operations on the Complainant. Thereby the Complainant is not entitle to get the relief claimed in this complaint and she deserves to get the following.

ORDER

          The Complaint of the Complainant is here by dismissed. No order as to costs.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 15th day of December 2016).

Documents marked on behalf of Complainant:

Documents marked on behalf of Opposite party.

Documents produced by this Forum