Chandigarh

DF-I

CC/398/2021

Mr. Sanju Baghla - Complainant(s)

Versus

Grewal Eye Institute - Opp.Party(s)

In person

14 Aug 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/398/2021
Date of Institution	:	17/6/2021
Date of Decision	:	14/8/2024

 

Mr. Sanju Baghla S/o D.K. Bagla, #1060, 1st Floor, Sector 46 B, Chandigarh-160047.

 

....Complainant

Versus

 

1. Grewal Eye Institute, SCO 168-169, Sector 9 C, Chandigarh.

2. Dr. S.P.S. Grewal, Opthalmologist/Director, Grewal Eye Institute, SCO 168-169, Sector 9 C, Chandigarh

3. New India Assurance Co. Ltd. through its Divisional Manager/Branch Manager First Floor SCO91,92,93, Sector 34-A, Chandigarh

4. Oriental Insurance Company Limited through its Divisional Manager/Branch Manager, 4E/14, Azad Bhawan Jhandewalan Ext. New Delhi-110055

....Opposite Parties

 

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR SURESH KUMAR SARDANA	MEMBER MEMBER

                       

ARGUED BY	:	Sh.Sunil K.Dixit, Advocate for Complainant. Sh.Munish Kapila, Advocate for OP No.1 & 2. Sh.Amit Kundra, Advocate for OP No.3 Sh. Sahil Abhi, Advocate for OP No.4.
	:

Per SURESH KUMAR SARDANA, Member

     Briefly stated the complaint who is using contact lens since teen age when felt  uncomfortable went to the OP Eye Institute for its much publicized refractive eye surgery for removal of the contact lenses/glasses. On the 19th of January, 2019, he met OP No. 2 at OP No.1. The complainant was diagnosed as a case of MYOPIA and advised SMILE refractive surgery, after which, the doctor assured that he would not have to use glasses or contact lenses, ever in life. The OPs assured that the complainant has no other problem, disease or weakness in his eyes except Myopia and after SMILE surgery his quality and comfort of life will increase dramatically, as far as visual activity of the body was concerned.  The complainant went to OP for the well known LASIK surgery but the OP suggested  more expensive and relatively new technology called smile.  The OP did not take the mandatory informed consent from the  complainant before subjected him to surgery.    The OP only did a Dry Eye work up prior to the actual surgery, as per receipts attached. The OPs charged a sum of Rs. 1,20,000/- for the SMILE relax surgery apart from other charges, as per receipts attached. The OP did not give any detailed surgery notes or pictures or CDs, but only issued a Brief Case Summary dated January, 22,2019, copy of which is annexed hereto as Annexure C-3. The complainant started suffering from various problems in his eyes after the Smile surgery conducted by the OP. He suffered from Dry eyes, Blurring, Glares & Haloes, Seeing double lines while reading, Ghosting of Images, Feeling Giddy while trying to Focus, Watery eyes Very Prominent Floaters (for which no treatment is available).  As a result of such problems, he could not carry out his employment work and also could not drive. Thereby, he lost much of his salary, chances of promotion and had to spend on conveyance/taxis to work, as he could not drive himself due to the abovesaid difficulties.  The OPs during the follow-ups, did not even note down the complaints of the complainant and just said it to be a case of S/P SMILE.  He merely prescribed some medicines and drops, time and again. The OP did not give any serious thought to the problems of the complainant and merely kept on saying that the said problems will get over with the efflux of time, within a month or so. The treatment, care and caution for the complainant by the OP has not been upto the mark. The OP has never been able to properly diagnose the complainant. Faced with such callous attitude of the OPs, the complainant visited various other eye-specialists, whose prescriptions are collectively annexed hereto as Annexure C-5. The complainant had to go far places such as Chennai and Bangalore to Shankar Netralaya and Narayana Nethralaya, where he was diagnosed as a case of "accommodative insufficiency", amongst other things. Case Summary dated 24.07.2019 issued by Narayan Nethralayais is most relevant in this regard, a copy of which is annexed hereto as Annexure C-6. It is only after the OP was told about such developments, that he started taking the complainants case seriously. In all his earlier slips, the OP only said "Advised Follow Up", but after August, 2019, when the complainant went to OP for follow up in November, 2019, the OP for the first time wrote in diagnosis dated 2nd November, 2019, the words, "Accommodative Insufficiency and advised Orthoptics and VTS. A copy of this prescription is annexed hereto as Annexure C-7. Interestingly, the OPs also prescribed vision glasses for the complainant on 2nd November, 2019, This itself proves that the OP Doctor admits that the Relex Smile Surgery conducted by him was a failure, as the complainant still required glasses. Due to negligence of the OPs the complainant has had to spend lakhs of rupees on travel and treatment of the problems. He has had to take days and hours off from work, due to the problems created by the OPs. The Complainant was not briefed about the risks involved in the Surgery and was only assured that the Surgery was a safe procedure and had no complications and was a bladeless Surgery.  Alleging the aforesaid act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed.

2. The Opposite Parties NO.1&2 while admitting the factual matrix of the case stated that on 22.1.2019 complainant was taken up for ReLex SMILE procedure for both the eyes under Dr. S.P.S. Grewal (Opposite Party No. 2). After instillation of topical anaesthetic and surgical draping, docking was performed. Sequentially refractive cut, side cut, cap cut and incision were created by the Visumax machine. The lenticule is then removed through a 2.2 mm incision with only minimal disruption to the corneal biomechanics. After removal of lenticule through the incision the surgery was completed. Complainant had comfortable intra-operative procedure and was discharged thereafter with post-operative instructions and medicines. Immediately , post-operative period complainant presented with unaided visual acuity of 6/6 for both eyes i.e. without glasses. It may noted here that his unaided vision had improved from 3/60 to 6/6 after a successful SMILE procedure which shows that from a vision of legally blind person without glasses he has improved to vision equivalent to that of a normal person. It is admitted here that post SMILE complainant did present to Grewal Eye Institute with some common complaints encountered after any cornea based refractive procedure which were informed to the complainant pre-operatively and were also documented in the written informed consent. It is submitted here that complainant was known case of dry eyes and had been on treatment for the same since 2011. In patients with dry eyes complaints like blurring, glares and haloes at night and ghosting are known to occur. Symptoms experienced by the complainant were duly documented in the EMR maintained at Grewal Eye Institute) and the screenshot of the EMR is annexed as Annexure OP-10 with the present reply. Complainant was rendered appropriate advice in line with his presenting complaints by the attending ophthalmologist and was re-assured and asked to follow post operative medicine regimen. On 19.2.2019 when complainant consulted the ophthalmologist at Grewal Eye Institute he was advised topical eye drops for his eyes. Despite having been rendered appropriate advice, complainant chose to consult the ophthalmologist at PGIMER Chandigarh and at Mirchia's Laser Eye Centre. Prescriptions dated 20.2.2019 and 30.3.2019 issued by PGIMER Chandigarh & Mirchia Laser Eye Centre are annexed with the complaint as Annexure C-5. It is submitted that PGIMER Chandigarh clearly mentioned that complainant had an unaided vision as 6/6 in each eye with no exophoria and he was advised to restrict from using computer for 3 weeks which connotes that probably the symptoms which he was experiencing were related to computer usage. Dr. Mirchia on his prescription slip documented near vision as N6 which is Normal. None of these prescriptions suspected or documents accommodative insufficiency. Both these prescription do not document any shortcoming with the procedure undertaken at Grewal Eye Institute on

22.1.2019. At both these centres complainant was prescribed lubricating eye drops which were also prescribed to him at Grewal Eye Institute where he had consulted previously before visiting these centres. This clearly validates the surgery and the line of treatment followed at Grewal Eye Institute.

 

(xiv) That complainant has also annexed the prescriptions issued by Narayana Nethralaya and Sankara Nethralaya where he had consulted in July & September 2019. It is submitted here that at Narayana Nethralaya complainant was found to have accommodative insufficiency for the first time and was simply advised eye exercises to strengthen his eye muscles. It was clearly documented in this prescription that the complainant was using glasses on and off only. In the prescription issued by Sankara Nethralaya dated 9.9.2019 exophoria is documented. Exophoria presented for the first time on 9.9.2019 and it was not present earlier when complainant was examined at PGI Chandigarh wherein it was clearly documented 'no exophoria'. It is clearly documented in the record of Sankara Nethralaya that complainant is Type A personality and he was using computer system for 10-12 hours a day. His vision at Sankara Nethralaya was documented as 6/4 BCVA and all his post surgery corneal parameters were found to be normal. It is submitted here that 6/6 is normal vision, 6/5 is one line better than normal vision and 6/4 is two lines better than normal vision. This shows that complainant could read two more smaller lines than what a person with normal vision could read. It shows that the complainant had normal 6/6 vision without glasses. In his case with glasses his vision improved to 6/4, which is two lines better than normal. It is averred that accommodative insufficiency has no relation with SMILE procedure In the Research Article by Zheng et al published in BMC Ophthalmology (2016) 16: 173 accommodative response increased and accommodative lag decreased after SMILE. A copy of this Article is annexed as Annexure OP-15. Even at PGIMER Chandigarh & Mirchia Laser Clinic where complainant had consulted on 21.2.2019/26.2.2019 & 30.3.2019 did not suspect, record a finding or diagnosis of accommodative insufficiency. This shows that Accommodative Insufficiency was not there during the immediate post-operative period and was an independent occurrence that occurred later.  Denying any negligence on their part all other allegations made in the complaint has been  denied being wrong.

 

3. OP No.3 in its reply stated that  the present complaint does not disclose any cause of action against the answering OP. Further stated, there is no privity of contract between the complainant and the answering opposite party. Therefore, there is mis-joinder of answering OP in the present. Hence, the present complaint is not maintainable qua the answering OP and liable to be dismissed qua OP.
4. OP No.4 in its reply  stated that the present complaint is not maintainable since there is no privity of contract of insurance between the complainant and answering respondent No.4 i.e. Oriental Insurance Co. Ltd. The privity of contract of insurance is between respondent No. 2 and respondent No.4. The present compliant as such deserves dismissal on this score only.
5. Rejoinder was filed and averments made in the consumer complaint were reiterated.
6. Contesting parties led evidence by way of affidavits and documents.
7. We have heard the learned counsel for the contesting parties and gone through the record of the case.
8. The main grievance of the complainant is that the doctors of Opposite Parties No.1&2  did not take the mandatory informed consent from him before subjecting him to surgery and he started suffering from various problems in his eyes after the smile surgery conducted by the doctors of OPs No.1&2.
9. On perusal of complaint and reply of OPs No.1&2, it is observed that the complainant was having poor vision of 3/60 (without glass) and visited the Opposite Parties No.1&2 in the year 2013 and discussed about undergoing LASIK surgery. In 2018, the complainant again approached OPs No.1&2 for SMILE  workup  to adjudged his suitability and  eligibility for the procedure as is evident from Annexure C-6.
10. The complainant again visited OPs No.1&2  on 19.1.2019 as is evident from Annexure C-2  for undergoing SMILE  workup. The allegations of the complainant is that informed consent was not taken before subjecting the complainant to surgery. We are not constrained to believe this version of the complainant as he himself has paid all the fees of surgery and got evaluation done and neither agitated this in any of the correspondence till filing of the instant complaint. Moreover, we have perused Annexure C-8 which is the document containing the informed consent for SMILE Relex (Laser Vision Correction)  which is duly signed by the complainant himself. As per the said document the complainant was made aware of all the side affects of undergoing such a procedure.
11. As far as the second allegation is concerned,  we have gone through the reports. It is observed that the vision of the complainant improved without glasses to 6/6 from a vision of 3/60 as observed earlier. Hence, it is proved on record that the procedure undergone by the complainant was successful.
12. We have also gone through the OPD card dated 30.3.2019 of PGIMER Chandigarh wherein his vision is recorded as 6/6 and no exophoria has been recorded and was advised by PGI doctor to restrict using computers.
13. On perusal of report of Narayana Nethralaya  dated 30.9.2019, 15.2.2020 and 3.4.2021 Annexure
    OP-25 to OP-27 it is apparent that the complainant was advised no-glasses. Complainant having been diagnosed with accommodative  insufficiency 5 months post SMILE appears to be independent and subsequent development  which had no relation with the surgery. As per Annexure C-12  there appears to be many other factors precipitating eye  muscles to weaken.
14. In view of the above discussion and  from the plethora of evidence on record, it is established that whatever best could be done by the doctors of Opposite Parties No.1&2  was done by them from very beginning  by exercising the best of skills with reasonable competence on their part.   Hence, there is no medical negligence on the part of the OPs No.1&2.
15. In view of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
16. Pending miscellaneous application(s), if any, also stands disposed off
17. Certified copies of this order be sent to the parties free of charge. The file be consigned

			sd/- [Pawanjit Singh]
			President
			Sd/-
			[Surjeet Kaur] Member   Sd/-
14/8/2024			[Suresh Kumar Sardana]
mp			Member