Delhi

West Delhi

CC/08/512

RAM DEV & SEEEMA DEVI - Complainant(s)

Versus

ESI HOSPITAL - Opp.Party(s)

03 Jan 2017

ORDER

 CONSUMER DISPUTES REDRESSAL FORUM (WEST)

GOVERNMENT OF NCT OF DELHI

150-151, Community Centre, C-Block, Janak Puri, New Delhi – 110058

 

                                                                                                 Date of institution  :30.06.2008

 

Case. No.512/08                                                                                             Date of order :03.01.2017   

In the matter of :-

Ram Dev since deceased represented by  Smt. Seema Devi,W/o Late Shri Ram Dev,R/o Pakwan Gaon, Gonda, Adampur, Uttar Pradesh-271401                                                                                                                   Complainant

Vs.

            Medical Suprintendent, ESI Hospital, Basidarapur, New Delhi                                                                                                                                         Opposite party-1

Medical Suprintendent, AIIMS, Ansari Road, New Delhi-29                                                                                                                                              Opposite party -2

           Medical Suprintendent, Gurunanak eye centre, LNJP Hospital,

           New Delhi-110002                                                                         Opposite party -3

           Delhi Medical Counsel, Room No. 368, 3^rd Floor, Pathology Block

           Maulana Azad Medical College, Bahadur Shah Zafar Marg,

           New Delhi-110002                                                                         Opposite party -4

           SDM, (Police Station kirti nagar) Rampura,  New Delhi.                                                                                                                                                     Opposite party -5

 

                                            

           R.S. BAGRI, PRESIDENT

O R D E R

           

Ram dev since deceased represented by his wife Smt. Seema Devi  herein complainant has filed the present complaint u/s 12 of the Consumer Protection Act against medical superindent ESI hospital and others herein opposite parties for compensation on account of medical negligence by Opposite parties and their functionaries.

           

 

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The brief facts of the complaint as stated are that complainant was enjoying medical facility as per the ESI Act. The complainant developed cataract in his eyes. Therefore, operartion of his left eye for cataract was performed long back. But after a gap of five years his right eye was also operated for cataract in Opposite party-1. He was discharged on 01.08.07. The complainant suffered loss of vision of his right eye due to negligence of the doctors of the Opposite party No. 1 during operation of cataract.

            The complainant was later on referred to Opposite parties No. 2 and 3 for further treatment. But the doctors of Opposite parties No.2 and 3 also failed to treat him for loss of vision. The complainant is 60 years old having wife and five children. He is jobless and unable to earn livelihood. Hence the complaint for directions to Opposite party No.1 to pay compensation of Rs. 18,00,000/- (eighteen lakhs) for medical negligence and loss of vision and Rs. 1,00,000/-(one lakh) towards legal expenses.

            After notice the Opposite party No. 1 appeared and  filed reply while contesting the complaint and raising preliminary objections that the complaint is false and frivolous, vague and evasive and liable to be dismissed with costs. However on merits the Opposite party No.1 asserted that Surgery for cataract was performed by senior and qualified eye surgeon of the hospital using latest technique of cataract surgeries with established method with all care and cautions. There is no negligence what to speak of medical negligence on the part of doctors of Opposite party No.1.

            The Complainant was not referred either to Opposite party No.2 or to Opposite party No.3 for second operation. Whereas record of treatment of complainant shows that complainant consulted eye surgeon at Opposite party No.2 on 18.12.06 and 22.01.07. He was directed to report again on 26.03.07. The complainant was also seen by eye surgeon at Opposite party No.3 in April 2008. Both Opposite parties No.2 and 3 are apex centres for eye care and he got best opinion and treatment. Therefore, there is no negligence on the part of doctors of Opposite party No.1 and prayed for dismissal of the complaint.

 

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The Opposite parties No.2,3 and 4 also filed their separate replies to the complaint while denying knowledge of operation of eye cataract of complainant by the doctors of Opposite party No.1 and asserted that the complainant was examined by the doctors at Opposite parties No.2 and 3. But later on he himself stopped coming to Opposite parties No.2 and 3. The Opposite parties No.2,3 and 4 further asserted that there is no allegation of negligence against them. The complaint against them is false and frivolous. Therefore complaint may be dismissed with special costs.

            The complainant filed rejoinder to the replies of all the Opposite parties while  Controverting stand taken by Opposite parties and reiterating his stand. He again prayed for directions to Opposite party No.1 to pay compensation.

            When the complainant was asked to lead evidence Ram Dev deceased complainant submitted his affidavit dated 02.07.2009. Wherein he reiterated his stand taken in the complaint. The complainant in support of his version has also relied upon medical treatment record from Opposite parties.

            When the Opposite parties were asked to lead evidence in support of their respective version the Opposite party No.1 submitted affidavit of Dr. JN Mahanti,  Opposite party No.2 submitted affidavit of Dr. Supriya Ghose, Opposite party No.3  submitted affidavit of Dr. B. Ghose and Opposite party No.4 submitted affidavit of Dr. Girish Tyagi. They all narrated facts of their respective replies in their respective affidavits.

We have heard Shrimati Seema Devi wife of deceased Ram Dev complainant and counsel for Opposite parties and have gone through the material available on  record carefully and thoroughly.                 

After having heard and going through the record carefully and thoroughly it is clear that complainant has alleged loss of vision of his eyes due to medical negligence of the doctors of Opposite party No.1 during operation of cataract of the eyes of complainant.

            The complainant to prove medical negligence on the part of the doctors of Opposite party No.1 has submitted his affidavit only. The complainant in the complaint and his affidavit alleged medical negligence of the doctors of Opposite

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party No.1. Except affidavit of the complainant there is no evidence or material showing medical negligence on the part of the doctors of Opposite party No.1.

            The affidavit of the complainant is rebutted by affidavit of Dr. JN Mahanty. Who has specifically stated that operation of cataract of the eyes of the complainant was performed by qualified surgeons as per standard medical practices with full care and precautions. Complainant was suffering from diabetes mellitus, hypertension and CVA (cerebro vascular accident). He also had long- standing  glaucoma in both eyes. He underwent trabeculectomy with peripheral iridectomy in both eyes, to bring down high intra ocular pressure, which is not controllable with medications and persistent high pressure damages the optic nerve. Which is reason for an irreversible  impairment for vision in each eye. There is no negligence in performing operation of the cataract in the eyes of complainant. Hence there is no document or relevent evidence on behalf of complainant to prove that the doctors of Opposite party No.1 were negligent in performing operation of eyes of complainant.

            The burden of proof that the opposite parties were negligent is on complainant. It is not for the opposite parties to show that they were not negligent and in cases of professional negligence higher standard of proof than ordinary civil cases of negligence is required. We are followed by 2003(1)CPR 356 (NC), 2006 II CPJ 348 NC Saleemuddin Vs Dr Sunil Malhotra,  2006 III CPJ 345 Jai Shankar Prasad Vs Dr Bhupinder Singh (MS),  2006 IV CPJ 182 Prabha Shankar Vs Narayan Hrudalyala and 2006 II CPJ 80 NC B. Anthony Raj Vs Shri Thomas hospital.

            It is also settled law-that lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day , he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the respondent followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient, a failure to use special or

 

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extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. 

In the present case there is no material  and evidence of medical negligence on behalf of complainant, merely because the complainant lost his vision, It cannot be held that there is medical negligence on the part of doctors of Opposite party No.1 while performing operation of  cataract of eyes of the complainant. Therefore in absence of any cogent and convincing material and evidence on behalf of complainant, he failed to prove medical negligence on the part of the doctors of Opposite party No.1.

Therefore, there is no merit in the complaint. Resultantly the complaint is dismissed.      

 

Order pronounced on   : 03.01.2017

• Copy of order be sent to the concerned parties free of cost.

• Thereafter, file be  consigned to record.

 

 

(PUNEET LAMBA)                                           (URMILA GUPTA)                               ( R.S.  BAGRI )

  MEMBER                                                         MEMBER                                          PRESIDENT