Haryana

Panchkula

cc/179/2014

NACHHATAR SINGH - Complainant(s)

Versus

GENERAL HOSPITAL - Opp.Party(s)

VARUN CHAWLA

25 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                             

Consumer Complaint No	:	179 of 2014
Date of Institution	:	11.09.2014
Date of Decision	:	25.05.2015

 

Nachhatar Singh s/o Saian, R/o H.No.3034, Sector 47-D Chandigarh.

 

                                                                                      ..Complainant

Versus

1.       General Hospital, Sector-6, Panchkula through Senior Medical Officer, Panchkula.

2.       Dr.Shweta, Eye Surgeon, General Hospital, Sector-6, Panchkula.

3.       Civil Surgeon, Panchkula, General Hospital, Sector-6, Panchkula.

                                                                                        ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Coram:                 Mr.Dharam Pal, President.

                             Mrs.Anita Kapoor, Member.

                             Mr.Anil Sharma, Member.

 

Present:                Mr.Varun Chawla, Adv, for the complainant. 

Mr.Verinder Bhardwaj, authorized representative for the Ops No.1 and 3.

Mr.Vaneet Sehgal, Adv, for the Op No.2.

 

ORDER

(Dharam Pal, President)

 

1. The complainant-Nachhatar Singh has filed the present complaint against the Ops with the averments that on 24/25.02.2013 visited the OP No.1 for eye check-up as he was suffering with Cataract in his right eye where the OP No.2 alongwith her staff checked the eyes of complainant and suggested him for operation for the Cataract operation. The complainant was advised to visit on 27.02.2013 for the operation and not to worry. The Op No.2 assured the complainant that she had conducted number of successful cataract surgeries and the complainant would get relief from the surgery & would gain his eye sight. It is submitted that Cataract surgery is the removal of natural lens of the eye (also called crystalline lens) that has developed an opacification which is referred to as a cataract. It is submitted that matabolic changes of the crystalline lens fibers over time lead to the development of the cataract and loss of transparency, causing impairment or loss of vision. As per advice of Op No.2, the complainant visited the Ops on 27.02.2013 and got the card prepared on payment of nominal fee of Rs.10/-. The Op No.2 after carrying out some examinations performed the operation on the right eye of the complainant and discharged him on the same day in the evening. The complainant was advised to visit on 28.02.2013 for removal of bandage and he visited the Ops on 28.02.2013 for removal of bandage. But after removal of bandage, the complainant could not see anything from the right eye and complained to the doctor that he was unable to see anything from the right eye and has lost his sight. After observing the condition of complainant, the doctor-Op No.2 advised him to take medicine and the eye sight would regain after a week approximately. The complainant took the medicine for a period of one week but his eye sight did not improve. The complainant again approached the Ops but the Ops showed incompetence to help the complainant and referred him to Sector-32 hospital. Thereafter, the complainant approached the Sector-32 hospital where the doctors after examining the complainant stated that the operation conducted at General Hospital, Sector-6, Panchkula-OP No.1 had not been conducted properly, as a result the nerves have been damaged and the chances of regaining the eye sight were very low but refused to put that in writing and recommended to start the treatment with immediate effect to improve the chances of regaining the eye sight. The complainant continued the treatment for a period of two months but with no success and lost eye sight of right eye. The complainant also underwent cataract surgery on the left eye at Sector-32 hospital and with the efforts of doctors of Sector-32 hospital, the operation was successful and he is able to see from the left eye.  Thereafter, the complainant approached the doctors at PGI, Chandigarh with hope of regaining the lost eye sight but after thorough check-up and treatment, there was no improvement. The complainant was advised by the doctors that damage caused to right eye was irreversible and vision was lost permanently. The complainant filed a complaint/application before the Ops to investigate the matter and held the doctor guilty who conducted the operation of complainant’s right eye which caused the loss of eye sight. It is submitted that an enquiry was made and the complainant was also called to submit his case. The complainant appeared before the concerned officials and made a statement in that regard but the enquiry was decided in favour of the doctor without going through the facts. The complainant was even not made aware of the decision of enquiry and the complainant filed an application under RTI, Act to know the status of the enquiry which was already decided in favour of the Op No.2. It is submitted that the expert Dr.Neeru was associated to the enquiry but she went on leave after enquiry and no effort was made by the Ops to associate another expert to the enquiry but chose to decide the enquiry in favour of Op No.2 without taking any opinion from any expert. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops No.1 and 3 appeared before this Forum and filed written statement by taking some preliminary objections. On merits it is submitted that cataract surgery was done with due care, diligence by the qualified eye surgeon-Dr.Shweta, MO after getting written consent of the complainant signed by him. It is submitted that the complainant was operated on 27.02.2013 and was discharged on 28.02.2013. It is submitted that on first postoperative day the complainant (patient) had corneal edema for which the doctor started him steroidal eye drops and glaucoma (timolol 0.5% eye drops). The complainant was followed up on third day corneal edema was reduced at that time but on patient’s request, he was referred to Government Medical College Sector 32 Chandigarh on 04.03.2013 as Sector 32 hospital was closed to his place and review at General Hospital, Sector-6 Panchkula after 15 days but the patient never turned up thereafter. It is submitted that fundus of the patient could not be visualized at the time of surgery at the time of surgery because of posterior sub capsular cataract. It is submitted that on day of enquiry patient’s vision in operated eye i.e. right eye was 6/60 in glasses cornea was clear anterior chamber was quite pupils was regular intraocular lens was present intraocular pressure was within normal limits. On fundus examination fundal glow was present and ocular media was clear & optic disc was pale. It is submitted that the complainant was hypertensive which was also documented in the PGI record the cause of optic disc pallor was to be ruled out for which higher centre opinion from PGI MER, Retina Clinic and Neuro Ophthalmology Department needed to be taken. The PGI MER has given its opinion that As per PGI, Chandigarh record patient has been diagnosed as the case of Non Arteritic Optic Neuropathy. Standard text books describe Hypertension as the Major cause of this disease. Patient is a known case of Hypertension for the last 15 years. The attending Eye Surgeon in her statement has mentioned that Intra Ocular Pressure of patient’s right eye remained normal throughout the post operative period. Further the attached reports of GMCH Sec. 32 and PGI MER, Chandigarh cataract surgery does not seem to be cause of loss of vision. Therefore the benefit of doubt may be given to the attending eye surgeon. It is submitted that the complainant filed complaint in the O/o DGHS, Haryana and Civil Surgeon, Panchkula on 05.09.2013. It is submitted that the Civil Surgeon forwarded the complaint to Op No.1 on 12.09.2013. The enquiry was conducted in the matter and enquiry report was sent to the Civil Surgeon vide Memo No. SeniorSteno-14/527 dated 20.01.2014 who further forwarded the same to the Director General Health Services, Haryana, Panchkula on 31.01.2014. It is submitted that the complainant did not report for enquiry when he was called to appear before the Enquiry Committee on 04.10.2013. It is submitted that on 11.10.2013 the complainant gave in writing that his written complaint might be considered as his statement. It is submitted that the enquiry report was also sent to the complainant vide No.RTI/PKL/14/3510 dated 10.03.2014 by the Civil Surgeon, Panchkula. It is submitted that Dr.Neeru Eye Surgeon was present in enquiry report till 11.10.2013 and she proceeded on long leave after enquiry so the comments of Dr.Jagdeep Singh were obtained in the matter. It is submitted that the complainant was treated free of cost for cataract surgery being National Program. Thus, there is no deficiency in service on the part of OPs No.1 and 3and prayed for dismissal of the complaint.
3. The Op No.2 appeared before this Forum and filed written statement. It is submitted that the complainant had visited General Hospital on 25.02.2013 and was attended by the OP No.2 in OPD. It is submitted that the Op No.2 recommended surgery for cataract in the right eye which was performed on 27.02.2013 and the complainant was advised to get the bandage removed on 28.02.2013. It is submitted that the complainant had duly filled in the consent form to undergo the surgery. It is denied that the Op No.2 had given any assurance to the complainant or had proclaimed to have performed various surgeries successfully. It is submitted that Op No.2 being a qualified surgeon has been in the service since the year July, 2012 and as such  there was no occasion for the Op No.2 to have extended any assurance. It is submitted that the hospital performs the surgeries free of cost and the patient has only to get a card issued by paying a nominal fee of Rs.10/-. It is submitted that the Op No.2 had carried out certain examinations, before performing the surgery on the right eye of the complainant. It is submitted that the complainant had reported on 28.02.2013 for removal of bandage. It is submitted that after removal of bandage, the complainant complained of loss of vision from the right eye. It is submitted that the Op No.2 examined the patient and explained that there was corneal edema (swelling) which could occur and would automatically be dissolved in few days with some medication. It is submitted that the complainant had agreed to take the medicine for few days and did not complain of anything else. It is submitted that the complainant again reported on 04.03.2013 and the Op No.2 had noticed some improvement and advised to report after 3-4 days. It is submitted that the complainant/patient who was resident of Sector 47-D, Chandigarh, requested for referral to a nearby hospital, to which the OP No.2 referred him to Sector 32 GMCH Chandigarh. Thereafter, the complainant never reported again to Op No.2. It is denied that the doctors attending the complainant had ever opined that the surgery had not been conducted properly or that any nerve had been damaged due to any negligence during the course of surgery. It is submitted that the complainant age of 72 years was hypertensive. It is submitted that surgery of left eye of the complainant remained successful, would not be a ground to presume that there was some negligence or fault of the Op No.2 while operating the right eye. It is denied that any doctor had advised or informed the complainant that there was damage caused by the Ops. It is submitted that the complainant had remained under constant treatment at GMCH Sector 32 Chandigarh and thereafter at PGIMER Chandigarh and none of authorities have recorded that there was any negligence or fault of the Ops while performing the surgery on the right eye of the complainant. It is denied that any application was made by the complainant. It is submitted that no medical expert has opined or concluded that the surgery performed upon the complainant was result of the loss of vision. It is submitted that no allegations against any enquiry officers have been leveled nor any enquiry officer has been made a party. It is submitted that OP No.2 has performed the surgery in a most diligent and careful manner. It is submitted that the complainant was called twice for enquiry. It is submitted that on one occasion, the complainant did not come and on 2^nd occasion  he gave in writing that his complaint might be treated as his statement. It is submitted that enquiry conducted was in a fair and proper manner. It is submitted that the complainant made an application under RTI. It is denied that enquiry has been conducted to cover up the blunder committed by the Op No.2. It is submitted that the OP No.2 has performed her duties with utmost diligence. It is submitted that the medical record attached with the complaint depicted that the complainant was hypertensive having BP 160/90 for a long period. It is submitted that the standard OPHTHALMOLOGY text book provides that hypertension was a cause of NAION (Nonarteritic Anterior Ischemic Optic Neuropathy). Thus, there is no deficiency in service on the part of OP No.2 and prayed for dismissal of the complaint with cost.
4. In order to substantiate his case, the counsel for the complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-5 and closed the evidence. On the other hand, the Ops No.1 AND 3 has tendered the evidence by way of affidavit Annexure R1/A alongwith documents Annexure R1/1 to R1/11 and closed the evidence. Similarly Op No.2 has tendered the evidence DOCUMENTS Annexure R2/1 and R2/2 and closed the evidence.
5. During the pendency of complaint, the counsel for the complainant had filed an application for appointing and referring the complaint/matter to the Medical Board. Reply to the application on behalf of the Ops No.1 and 3 had been filed but the Op No.2 did not file any reply to the application. After going through the application as well as reply to the application this Forum sent the matter to the Director, Government Hospital Sector 32 Chandigarh with the direction to constitute the Board of three doctors who could examine the patient in the presence of Ops as per complaint. The Medical Superintendent, Govt. Medical College & Hospital Chandigarh has sent the report/opinion of the complainant Nachhatar Singh which is as under

The medical board members are of the opinion that the most probable cause of decreased visual acuity in right eye in this patient is non-arteritic anterior ischemic optic neuropathy (NA-AION) leading to optic atrophy and it does not appear to be due to the complication of cataract surgery.

6. We have heard learned counsel for the parties and have gone through the case file carefully and minutely.
7. After perusal of material on case file as well as hearing the arguments advanced on behalf of both the parties we are of the considered opinion that there is no force in the arguments advanced by learned counsel for the complainant. The final and foremost question is to be decided by this Forum whether the complainant falls under the definition of consumer or not? Section 2 (i) (d) of the Consumer Protection Act reads as under

(d) ‘Consumer’ means any person who

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose or
2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes

Explanation  For the purposes of this clause commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment. (Emphasis added)

8. In the present case the complainant had taken treatment from the General Hospital Sector 6 Panchkula by paying nominal fee of Rs.10/-. Since the treatment given by the doctor of the General Hospital, Sector-6, Panchkula, which was a free service therefore no liability can be fastened. Therefore he cannot be treated as a consumer as defined under section 2 (i) (d) of the Act and the Forum is barred to invoke jurisdiction with regard to the matter in dispute. On this point reliance can be taken from the case law titled Rajesh vs. Professor Dr.Rajender Nath & Anr. in revision petition No.3967 of 2014 decided on 07.05.2015 by the Hon’ble National Commission wherein the Hon’ble National Commission has held as under

We have heard the counsel for the parties. We have perused the evidence and orders of both the fora below. The District Forum dismissed the complaint relying upon the judgment of Hon’ble Supreme Court in the case of IMA vs. V.P.Shantha III (1995) CPJ 1 SC wherein it was held that the treatment given by a doctor of government hospital, which was a free service therefore no liability can be fastened. Even we are of the similar view that the complainant filed complaint against the doctor working in G.S.V.M. Medical College which was a government medical college. We also take clue from the judgment of Hon’ble Supreme Court in the case of Indian Medical Association Vs. V.P.Shantha & Ors. that doctors and hospitals who render service, without any charge, whatsoever to every person, availing the service, would not fall within the ambit of “services” under section 2 (I)(O) of the Act.

9. Keeping in view the above mentioned facts & circumstances and following observations made above citation we have no doubt in our mind in holding that the complainant is not consumer under section 2 (i) (d) of the Consumer Protection Act. Accordingly the complaint of the complainant is hereby dismissed leaving the parties to bear their own costs.

10. A copy of this order be supplied to the parties free of costs.  File be consigned to records after due compliance.

 

 

 

Announced    (Anil Sharma)        (Anita Kapoor)                   (Dharam Pal)

25.05.2015    Member                  Member                      President

Note: Each and every page of this order has been duly signed by me.

 

      

                                                          Dharam Pal                                                                                                President