Punjab

Ludhiana

CC/18/484

Ashok Kumar - Complainant(s)

Versus

Fortis Hospital Limited - Opp.Party(s)

SS Heer adv

04 Jul 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:484 dated 02.08.2018.                                                         Date of decision:04.07.2022.

 

Ashok Kumar through L.Rs.

i)       Prem Lata Grover aged about 62 years (wife)

ii)      Vikas Grover aged about 42 years (son)

iii)     Dhiraj Grover aged about 41 years (son)

beneficiary by way of will dated 03.05.2019

all residents of House No.194/1, Guru Nanak Pura, Civil Lines, Ludhiana.

iv)     Mamta Chawla aged about 44 years (daughter) w/o. Sh. Rakesh Chawla r/o.412, Ward NO.5, VPO Mahilpur, Haveli Mahilpur, Hoshiarpur-146105.

v)      Ruchi Gulati aged about 38 years (daughter) w/o. Rajan Gulati, r/o. 1947, Dharampura Colony, Near Indra Market, Jagdhari, Dist. Yamuna Nagar-135003, Haryana.                                                                                                                                                                                    ..…Complainants

                                                Versus

Fortis Hospital Limited, through its Managing Director/Medical Superintendent, Village Mundian Kalan, Chandigarh Road, Ludhiana.                                                                                                                      …..Opposite party

          Complaint Under Section 12 & 14 of the Consumer Protection             Act.

QUORUM:

SH. K.K. KAREER, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants            :         Sh. S.S. Heer, Advocate.

For OP                           :         Sh. S.K. Dhir, Advocate.

 

 

 

ORDER

PER K.K. KAREER, PRESIDENT

1.                In brief, the case of the complainant is that he contacted OP hospital on 03.01.2016 as an outdoor patient with complaint in his right eye. The concerned doctor advised the complainant to get the ECG test done. Accordingly, the complainant paid Rs.1264/- towards test vide cash receipt dated 03.01.2016.The complainant again visited the OP hospital as per the advice of concerned Dr. Sandeep Chopra  for the treatment of his right eye.

2.                It is further alleged that the complainant again visited the OP hospital and contacted Dr. Deepak Gupta who examined the complainant as per prescription slip dated 27.02.2016 regarding which the consultation fee of Rs.600/- was deposited vide receipt dated 27.02.2016. On 01.03.2016, right eye of the complainant was examined by Dr. Deepak Kumar Gupta who advised him to deposit a sum of Rs.5000/- as advance for surgery. The said amount of Rs.5000/- was deposited vide receipt dated 01.03.2016. As per the advice of Dr. Deepak Kumar Gupta, the complainant again visited the OP hospital on 08.03.2016 and Dr. Sandeep Chopra prescribed some medicines on the prescription slip. Some other tests were also conducted in the laboratory on the same day. On 09.03.2016, the complainant was admitted at OP hospital at 08.48 AM. The surgery of the right eye was conducted on that day and the complainant was discharged on the same day at about 05.10 PM. The OP charged a sum of Rs.12,902/- vide bill dated 09.03.2016 towards the surgery and the drugs etc. at the time of discharge, the complainant was advised to visit the hospital for review on 10.03.2016 at 10.30 AM in OPD-18.

3.                It is further alleged in the complaint that soon after the discharge, the vision of the complainant’s right eye was not clear; rather it started fading. The complainant continuously contacted the OP hospital on 12.03.2016, 31.03.2016, 12.04.2016, 25.04.2016, 30.04,2016, 24.05.2016, 03.06.2016, 13.06.2016, 27.06.2016, 01.07.2016 and 27.07.2016 but despite repeated visits by the complainant, there was no improvement in the vision of the right eye of the complainant. On 03.08.2016, the OP hospital again charged a sum of Rs.500/- as consultation fee of Dr. Sandeep Chopra  and the patient was advised to visit again after taking medicines as advised in the prescription slip dated 27.07.2016 regarding double vision feeling in the right eye. However, when the complainant did not get any improvement in the vision of his right eye, he again visited the OP on 19.11.2016 with complaint of double vision in the eyes. He was advised to visit again on 26.11.2016 after taking prescribed medicines. As no improvement in the vision of the right eye of the complainant took place, he again visited the OP hospital with the same complaint on 03.12.2016, 30.04.2017, 22.11.2017 and 06.12.2017. Thereafter, the complainant experienced sharp decrease in the vision of right eye. Rather he developed blurring of vision in both the eyes. There was no improvement in his condition even though he visited the OP hospital for as many as 45 times up to 06.12.2017.

4.                It is further alleged that the complainant contacted Dr. Deepak Kumar Gupta regarding double image, blurring vision, black spot feeling in the right eye. Dr. Deepak Kumar Gupta advised the complainant to contact Mr. Dinesh Garg of M/s. Advanced Centre for Eyes, Kichtlu Nagar, Ludhiana. The complainant visited the said hospital on 19.12.2017 and paid consultation fee of Rs.500/-. The complainant was examined as per report dated 19.12.2017. In fact, the OP hospital referred the complainant to M/s. Advance Centre for Eyes only to save their own skin. The complainant further visited another hospital namely Sharman Shri Phool Chand Jain Eye Medical Centre  after his operation was performed by Dr. Deepak Gupta.

5.                It is further alleged that the complainant was never apprised of the complications or the side effects associated with the procedure of surgery. Had the OP hospital disclosed regarding the complications which were likely to take place after the surgery, he would not have opted for it at all. The OP performed the surgery in a negligent manner without observing the due protocol. It was conducted without pre-surgical investigation through MRI or other relevant procedure. The standard procedure as advised in medical texts was not followed. The entire procedure was conducted in a highly unprofessional and negligent manner without observing the necessary guidelines, advised and mandated during such surgery. Thus, the OP hospital had failed to take due care, precautions during and after the surgery and when the complications arose, the complainant was referred to another hospital. This amounts to negligence and deficiency of service on the part of the OP. Hence the complaint. In the end, it has been requested that the OP be directed to pay compensation of Rs.1,50,000/-  and the amount of the bills/receipts charged by the OP from the complainant be also refunded.              

6.                The complaint has been resisted by the OP. In the written statement filed on behalf of the OP, it has been, inter alia, pleaded that the complaint is not maintainable and the same is a blatant abuse of process of law. The complainant has failed to show any negligence on the part of the OP. The complainant has not relied upon any documentary evidence or expert evidence to prove that the investigation and the treatment conducted by the OP was negligently done. According to the OP, as per the version of the complainant he was having previous history of admission at HDMI (Hero Heart DMC Institute) about 3½ years back with shortness of breath, diagnosed with acute coronary syndrome, diabetes type-2 with ejection fraction 30% and having coronary angiography suggestive of non-critical coronary artery disease. In view of the history of the complainant, the relevant investigations were conducted by the OP. Thereafter, the concerned doctor namely Dr. Sandeep Chopra gave clearance for surgery on 08.03.2016 after conducting necessary investigations. Therefore, no act of negligence can be attributed to the OP.

7.                The OP has further pleaded in the written statement that the complainant already had a history of decreased vision and admission at HDMI about 3 years back and he was diabetic etc. After the complainant approached the OP hospital for detailed diagnosis, various tests and examination were conducted including ECG under the supervision of Dr. Sandeep Chopra. Dr. Deepak Kumar Gupta, suggested surgery of right eye. Therefore, on 09.03.2016, surgery was performed to right eye PHACO with foldable PCIOL under local anesthesia for cataract with foldable lens in the capsule of right eye were performed. After the surgery, the complainant was discharged on the same day having diagnosed RE IMMATURE CATARACT. The OP has further pleaded that there has been no deviation from the medical protocol by the doctors of the OP. Moreover, the complainant has not relied upon any expert evidence to prove that there has been any negligence on the part of the OP. The allegations are evasive, vexatious and frivolous in nature. The other allegations leveled the complaint have been denied as wrong and in the end, a prayer for dismissal of the complaint has been made.

8.                In evidence, the complainant No.ii Vikas Grover submitted his affidavit Ex. CA along with documents Ex. C1 to Ex. C41 and closed the evidence.

9.                On the other hand, the counsel for OP tendered affidavit Ex.OP/A of Dr. Shally, Medical Superintendent of OP as well as affidavit Ex. OP/B of Dr.Shivani Garg, Associate Consultant of OP along with documents Ex. A to Ex. I and closed the evidence.

10.              During the pendency of the complaint, the complainant Ashok Kumar died on 06.10.2020 and his legal heirs were impleaded as party in this case vide order dated 10.02.2022.

11.              We have heard the arguments advanced by the counsel for the parties as well as written arguments submitted by the parties and have also gone through the record carefully. 

12.              During the course of arguments, the counsel for the complainant contended that the doctors of OP hospital conducted surgery of right eye of the complainant in a casual, callous and negligent manner with the result that the vision of right eye instead of improving deteriorated further in the post surgery period. There was absolutely no improvement in the vision of right eye after the surgery. The counsel for the complainant has further contended that the complainant developed double vision in his eyes and he kept on visiting the OP hospital time and again and also took prescribed drugs but despite that, no improvement took place. Thus, it was an act of sheer negligence on the part of the doctors of the OP hospital who are liable to be held guilty of medical negligence. In support of his argument, the counsel for the complainant has relied upon 2019 AIR (Supreme Court) 2385 in Nand Kishore Prasad Vs Dr. Mohib Hamidi & Others whereby it has been held by the Hon’ble Supreme Court of India that if there is no evidence that surgery was only life saving option available at that time, action to operate upon the patient cannot be said to be prudent decision. The counsel for the complainant has further relied upon 2019 (196) AIC 19 in Shoda Devi Vs DDU/Ripon Hospital Shimla and others whereby it has been held by the Hon’ble Supreme Court of India that the award of compensation cannot go restrictive when the victim is from a rural background.   It was further held that if the OPs were unable to meet standard of reasonable care expected of medical services as laid down in Bolam Test (1957) they were liable to be held guilty of medical negligence.   

13.              On the other hand, the counsel for the OP has argued that the complainants have not led any expert evidence to prove the fact of negligence on the part of the OP hospital. The doctors who operated upon the complainant have not been made a party. Even Mr. Dinesh Garg of M/s. Advanced Centre for Eyes to whom the complainant is alleged to have been referred by the doctor of the OP has neither been impleaded nor examined as a witness to prove the factum of medical negligence. The counsel for the OP has further contended that due procedure as per medical tests book were followed by the OP in the pre and post surgery of cataract in the right eye of the complainant. Thus, there is no negligence nor any negligence has been proved on record by the complainant. The counsel for the OP has further requested that the complaint is without any merits and deserves to be dismissed.

14.              We have weighed the contentions raised by the counsel for the parties and in the light of the same have gone through the record.

15.               In this case, the grievance of the complainant is that his surgery of right eye which was conducted by the doctors of OP hospital on 08.03.2016 was conducted in a negligent and callous manner which resultant into further deterioration of vision in the right eye and it also caused double vision in both eyes. To prove the element of medical negligence, no expert witness has been examined by the complainant. Even Mr. Dinesh Garg of  M/s. Advanced Centre for Eyes to whom the complainant was subsequently allegedly referred to by the doctors of OP hospital has not been examined as witness. Thus, there is absolutely no expert evidence on record to prove the fact of negligence on the part of the doctors of OP while treating the complainant or carrying out cataract surgery of right eye of the complainant.        

16.              It is pertinent to mention here that during the pendency of this case, a report was called from the office of Civil Surgeon, Ludhiana with regard to the fact as to whether there has been any negligence on the part of the doctor of the OP while treating the complainant. The copy of the report submitted by the medical board of three doctors comprising of  Dr. Ripudaman Kaur, Eye Surgeon, Civil Hospital, Ludhiana, Dr. Harish Kirpal, Ortho Surgeon, Civil Hospital, Ludhiana and Dr. Amanpreet Kaur, Medicine Specialist, Civil Hospital, Ludhiana is available on the file. In the report of medical board, it is mentioned that the complainant was a known case of hypertension and diabetics mellitus. After proper cardiac and medical evaluation, he was taken for surgery. It is further mentioned in the report that pre-operatively patients best corrected vision was 6/9 P in right eye and 6/12 in left eye. Post-operatively, patients best corrected vision was recorded as 6/12 partial in 27/6/2016 in right eye, 6/12 in both eyes on 01/07/2016 which improved to 6/6 partial in right eye on 20/-04/2017 along with best corrected vision of left eye being 6/12 partial on 20/04/2017. It is further mentioned in the medical board report that the complainant later on developed exophoria and he also complained of diplopia. The complainant further developed non-proliferative diabetic retinopathy leading to proliferative diabetic retinopathy. It is further added in the report that these complaints and diagnosis are due to diabetics. In the concluding part of the report, the board of doctors have given a unanimous opinion that diplopia and decrease vision are sequela of diabetics so the eye surgeon is not negligent regarding these complaints. It is further mentioned in the operating part of the report that the complainant has alleged that he was not informed regarding the compilations during and after the surgery but in this regard, the board of doctors cannot comment as no consent form is available.

17.              From the report of medical board of three doctors, it is clear that the problems of diplopia and decreased vision are result of the patient being diabetic and the eye surgeon is not negligent. In the instant case, it is not disputed that the complainant was a diabetic. Moreover, in the medical report, it is further clearly mentioned that the vision partially improved in the post surgery period which further proves that the surgery was carried out successfully otherwise there would not have been even a slight improvement in the vision.

18.              So far as the question of obtaining the consent from the complainant is concerned, the OP Hospital has placed on record the admission sheet Ex. G on which informed consent and general consent was obtained from the patient and his relatives prior to carrying out the surgery. The consent form is duly signed by the patient Ashok Kumar and witnessed by his wife Prem Lata. It is clearly mentioned in the consent form that the patient is aware of the possible risks and complications. Therefore, it cannot be said with conviction that the consent of the patient was not obtained.

19.              It is further evident from the record that since the patient was diabetic prior to the surgery, all the investigations were got conducted by Dr. Sandeep Chopra and only after investigations, the said doctor gave green signal for the surgery. Apart from that as stated above, it is clearly mentioned in the report given by the board of doctors that there has been no negligence while carrying out the surgery and the complications of diplopia etc. was due to the fact that the complainant was suffering from diabetes since long. No expert witness has been proved to counter the opinion given by the board doctors. Therefore, the report of board of doctor remains un-controverted and in the absence of any contrary opinion or evidence, this Commission is constraint to hold that the complainant has failed to prove any negligence on the part of the doctors of the OP while conducting the cataract surgery of right eye of the complainant Ashok Kumar since deceased.

20.              We have also gone through the case law cited by the counsel for the complainant but are afraid to say that none of the case cited by the counsel for complainant is applicable to the facts and circumstances of the present case.

21.              In view of foregoing discussion, we are of the considered view that the complainant has failed to prove the element of negligence. Therefore, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

22.              Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

Announced in Open Commission.

Dated:04.07.2022.

Gobind Ram.

Ashok Kumar Vs Fortis Hospital                                    CC/18/484

Present:       Sh. S.S. Heer, Advocate for the complainants.

                   Sh. S.K. Dhir, Advocate for the OP.

                            

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:04.07.2022.

Gobind Ram.