Haryana

Kurukshetra

61/2016

Shyam Lal - Complainant(s)

Versus

Gurunanak - Opp.Party(s)

Satpal Sharma

11 Feb 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

 

                                                Consumer Complaint No.61/16.

                                                        Date of instt.:19.02.2016 

                                                Date of Decision:11.02.2020.

 

Shyam Lal son of Sunder Singh, resident of Dera Patel Nagar, village Harigarh Borkh, Tehsil Pehowa, District Kurukshetra.

                                                                  ….…Complainant.

                                        Versus      
 

1. Shri Guru Nanak Dev Charitable Eye Hospital, Baba Dalip Singh Marg, Pehowa, through its Managing Director/Manager.
2. Dr. Pooja Gupta son of Shri Guru Nanak Dev Charitable Eye Hospital, Baba Dalip Singh Marg, Pehowa.
3. United India Insurance Company Limited, through its Branch Office, Railway Road, Kurukshetra.

                                                        ….…Opposite parties.

 

Complaint under section 12 of Consumer Protection Act.

                                                                                               

Before       Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member.       

                   Shri Issam Singh Sagwal, Member.                

 

Present:     Shri S.P. Sharma, Advocate for the complainant.

                Shri R.K. Gupta, Advocate for the OP No.1.

                Shri Rajan Chawla, Advocate for the OP No.2.

                Shri R.K. Singhal, Advocate for the OP No.3.

 

ORDER

 

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by Shyam Lal complainant against Shri Guru Nanak and others, the opposite parties.

2.             It is stated in the complaint that in the month of February, 2014 the complainant felt problem of vision in his left eye upon which he visited to Op No.1 where OP No.2 was working as doctor, who after examining the complainant suggested for Cataract (Motia Bind). On 25.2.2014, OP No.2 operated left eye of complainant for Cataract negligently, carelessly and without adopting the proper surgical procedure/treatment protocol and discharged the complainant on the same day after operation. As per schedule given, the complainant visited to the OP’s hospital for removal of Bandage and for getting the spectacles. On removing the bandage, the complainant felt slight vision in his left eye after operation, however, Op No.2 prescribed some medicines. After two days of operation, the complainant lost his complete eye vision and started secreting water and sever pain in the operated eye, upon which the complainant visited to Ops and they used to prescribe the pain killers etc. and other medicines and used to ensure the complainant that the eye would be cured and vision of operated eye would revive back, but in vain. Thereafter, the complainant took the treatment from various doctors, i.e. Sood Nehra Eye Hospital, Kaithal, Gian Sagar Medical College & Hospital, Rajpura, PGI, Chandigarh etc. but all the doctors orally told that the vision of the operated eye cannot be revived as the same has been damaged completely due to the reason of the improper/unsuccessful operation of the affected eye and also told that the eye was damaged due to wrong injection prior to operation. The Ops have conducted the operation of complainant very negligently and with a very casual attitude due to which the vital organ of the complainant has got damaged and he has become handicapped for his entire life. Due to the act and conduct of the Ops the complainant has suffered mental agony, physical harassment and financial losses. The complainant requested the OPs to pay the compensation but they did not pay any heed. Thus, it amounts to deficiency in service on the part of OPs. Hence, the present complaint was moved by the complainant with the prayer to direct the Ops to pay Rs.8,20,000/- along with 18% interest on account of negligence, deficient services and unfair trade practices adopted by the OPs.

3.             Upon notice, opposite parties appeared. OP No.1 contested the complaint by filing separate written statement taking certain preliminary objections to the effect that the complaint is not maintainable against the answering OP; that the complainant has concealed the true and material facts from this Forum The true and material facts that the complainant and his relative has given the consent for operating the eye and duly signed on the consent Form and no operation fees and medicines was charged from the complainant as the answering OP is a Charitable Trust and camp organized by the Charitable Trust for the welfare of public; that the complainant has not followed the instructions given by the OP No.2 at the time of discharge; that the answering OP is fully insured under the insurance policy No.DFO-OE-110702/46/13/32/00000116 w.e.f. 2.8.2006 to 1.8.2014 of United India Insurance Company Railway Road, Kurukshetra.  Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of answering Op and as such, the complaint of the complainant is liable to be dismissed. The contents of the complaint were denied. Preliminary objections were repeated. Prayer for dismissal of the complaint was made.

                The OP No.2 also contested the complaint by filing separate written statement taking certain preliminary objections to the effect that the cause of action has taken place with respect to OP No.2 on 24.2.2016 which is more than two years six months eight  days ago from the date of filing of application (31.8.2016) hence, the complaint is time barred under Section 24 of the Consumer Protection Act, 1986; that the answering OP does not remember any post operative or intra operative treatment detail, the complainant should be directed to produce the discharge card, IPD papers and other documents which are in his possession; that the answering OP is well qualified, reputed and respected doctor and has done Her PG (Opth) degree from prestigious PGIMER Rohtak and the answering OP has operated thousands of operations for the said surgery and her record and profession record is spotless; that patient visited to Op No.1 where the answering OP examined him and suggested surgery for his left eye cataract. The surgery was done diligently, prudently with utmost due care and caution and there is no negligence or unfair trade practice on the part of answering OP; that the patient was discharged on the same day and the answering OP has not administered the anesthesia or surgery done; that the answering OP had operated upon his cataract only. Postoperatively the patient has not visited the answering OP for further check up. No medicine/advice was prescribed by the answering OP and everything was done by the answering OP diligently with utmost due care and caution in treating the said patient. Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of answering Op and as such, the complaint of the complainant is liable to be dismissed. The contents of the complaint were denied. Preliminary objections were repeated. Prayer for dismissal of the complaint was made.

                The OP No.3 also contested the complaint by filing separate written statement taking certain preliminary objections to the effect that the complete insurance particulars have not been supplied to the answering OP for want of which the insurance of Ops No.1 & 2 specifically denied; that the complainant has estopped from filing the present complaint as he had concealed the true and material facts and as such he is not entitled for any relief; that the complainant has not produced any opinion of the medical board and as such the present complaint is not maintainable against the answering OP. Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of answering Op and as such, the complaint of the complainant is liable to be dismissed. The contents of the complaint were denied and prayer for dismissal of the complaint was made.

4.             The learned counsel for the complainant tendered affidavit Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-10. The OPs No.1 & 2 has failed to lead any evidence despite availing various opportunities, as such, evidence of the OPs No.1 & 2 closed by order of this Forum. The learned counsel for the OP No.3 tendered affidavit Ex.RW1/A.

                During the pendency of the complaint, the OP No.2 moved an application for dismissal the complaint being time barred, which was dismissed being not maintainable vide order dated 06.02.2020.

5.             We have heard learned counsel for the parties and have gone through the record carefully.

6.             The learned counsel for the complainant has reiterated all the averments mentioned in the complaint. He argued that in the month of February, 2014 the complainant felt problem of vision in his left eye, upon which, he visited to OP No.1 where OP No.2 was working as doctor, who after examining the complainant suggested for Cataract (Motia Bind). He further argued that on 25.02.2014, the OP No.2 operated left eye of complainant for Cataract negligently, carelessly and without adopting the proper surgical procedure/treatment protocol and discharged the complainant on the same day after operation. On removing the bandage, the complainant felt slight vision in his left eye, after operation. After two days of operation, the complainant lost his complete left eye vision and started secreting water and sever pain in the operated eye, upon which the complainant visited to Ops and they used to prescribe the pain killers etc. and other medicines and assured that vision of operated eye would revive back, but in vain. Thereafter, the complainant took the treatment from various doctors, i.e. Sood Nehra Eye Hospital, Kaithal, Gian Sagar Medical College & Hospital, Rajpura, PGI, Chandigarh etc. but all the doctors orally told that the vision of the operated eye cannot be revived as the same has been damaged completely due to the reason of the improper/unsuccessful operation of the affected eye and also told that the eye was damaged due to wrong injection prior to operation.

                He further argued that on his written request, the board of experts was constituted who submitted their report Mark-A but that report has been given only on the basis of statement of the parties. He further argued that the complainant lost his complete left eye vision and facing the complication i.e. Endophthalmitis after the operation, and in the report of board of experts Mark A, the said board has also admitted that the complication which were faced after the operation, are called Endophthalmitis. He further argued that the said report has been fabricated by the said board of experts in connivance with the OPs No.1 & 2. He further argued that since the said board had given their report without going through the treatment record of the complainant (which was not produced by the OPs No.1 & 2 itself), therefore, this is not legally valid and the present case should be decided on merits.

                He further argued that the Ops have neither produced the treatment record of the complainant before the board of experts/doctor nor produced the same on the case, whereas, as per Para No.1.3 (1.3.1) Maintenance of medical records, of Notification dated 11.03.2002 issued Indian Medical Council (Mark B), Every physician shall maintain the medical records pertaining to his/her indoor patients for a period of 3 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India and attached as Appendix 3. He further argued that he got surgery from the OPs on 24.02.2014 and filed the present complaint on 19.02.2016 i.e. within two years from the date of operation, therefore, as per above Notification, the OPs were legally bound to save/restore the treatment record of the complainant till the matter regarding the same is pending before this Forum, but the OPs did not restore/save the same, which shows great deficiency on their part.

                He further argued that as per definition Mark C, the Endophthalmitis can be possible due to cataract surgery. Moreover, the Invravitreal Injections expose patients to the risk of endophthalmitis. The definition of Endophthalmits reads as under:-

                Endophthalmitis is an inflammation of the interior of the eye. It is a possible complication of all intraocular surgeries, particularly cataract surgery, with possible loss of vision and the eye itself. Infectious cause is the most common and various bacterial and fungi have been isolated as the cause of the endophthalmitis. Other causes include penetrating trauma, allergic reaction, and retained intraocular foreign bodies. Intravitreal injections expose patients to the risk of endophthalmitis, but with an incidence rate usually less than .05%.

                He further argued that the complainant lost his complete eye vision due to the reason of the improper/unsuccessful operation of the affected eye by the OP No.2 as well as due to wrong injection (Anesthesia) prior to the operation, which was given by the hospital nurse, who given excess dose to him. He further argued that in his written statement at para No.5 of Page No.5, the OP No.1 stated that the anesthesia was given by the expert doctor, but the OP No.1 has nowhere mentioned the name/designation of that doctor. Moreover, in his written at page No.3 para No.9, the OP No.1 has mentioned that “she (OP No.2) has not administered the anesthesia for the surgery done by the OP No.1. She (OP No.2) had operated upon his (complainant) cataract only”. He further argued that both the Ops have failed to disclose that before the operation, who had given the anesthesia injection to the complainant. It is the duty of the doctor to see before the operation that the proper Anesthesia injection was given or not, but the OPs No.1 & 2 did not do so, which shows great deficiency on their part. In support to his contention, he placed reliance upon case laws titled Dr. Sathy M. Pillay & Anr. Vs. S. Sharma & Ors., 2018 (1), Civil Court Cases, 247 (SC); Ashish Kumar Vs. Aishi Ram Batra Charitable Hospital Trust & Ors., 2014 (2) Apex Court Judgments, 319 (SC) AND V. Krishnakumar Vs. State of Tamil Nadu & Ors., 2015 (3) Civil Court Cases, 557 (SC). 

7.             Contrary to it, the learned counsel for the OP No.1 has argued that the complainant and his relative has given the consent for operating the eye and duly signed on the consent Form and no operation fees and medicines was charged from the complainant as the answering OP is a Charitable Trust and camp organized by the Charitable Trust for the welfare of public. He further argued that the complainant has not followed the instructions given by the OP No.2 at the time of discharge. He further argued that the answering OP is fully insured under the insurance policy with the United India Insurance Company. He further argued that the board of experts have submitted their report wherein they found no deficiency on the part of the Ops. Hence, there is no deficiency in service on the part of answering OP.

8.             The learned counsel for the OP No.2 has argued that the OP No.2 is well qualified, reputed and respected doctor patient visited to Op No.1. The surgery was done diligently, prudently with utmost due care and caution and there is no negligence or unfair trade practice on the part of answering OP. He further argued that the patient has not visited the answering OP for further check up. No medicine/advice was prescribed by the answering OP and everything was done by the answering OP diligently with utmost due care and caution in treating the said patient. He further argued that the board of experts has submitted their report dated 29.11.2019, wherein, they found no deficiency on the part of the Ops and prayed for dismissal the present complaint against the OPs with costs. To support his contention, the OPs No.1 & 2 produced case law titled Vinod Jain and Santokba Durlabhji, Civil Appeal No.2024 of 2019 (SC).

9.             The learned counsel for the OP No.3 has argued that the complete insurance particulars have not been supplied to the answering OP for want of which the insurance of Ops No.1 & 2 specifically denied. The complainant has not produced any opinion of the medical board and as such the present complaint is not maintainable against the answering OP. There is no deficiency in service on the part of answering Op and as such, the complaint of the complainant is liable to be dismissed.

10.            Admittedly, the OP No.2 conducted the Cataract surgery of left eye of the complainant. Since there was controversy about medical negligence involved in the present case, therefore, in order to resolve the same in just, fair and proper manner, this Forum preferred to seek opinion of board of doctors of eye specialists. Accordingly, vide order dated 10.04.2019, the medical experts opinion of doctors specialized in the field of eye, from LNJP Hospital, Kurukshetra, was called and a report dated 29.11.2019 (Mark-A) was furnished by the said experts, which is Mark A. From the perusal of expert report dated 29.11.2019, it is apparent that neither the said board have considered/gone through the medical record/ file regarding the treatment of the complainant nor the OPs have produced the treatment file of the complainant before that Board, rather the said Board made their observation on the ground of statement given by both the parties, so the said Board has given their report without scrutinizing and evaluating the relevant evidence regarding the treatment of the complainant, hence, the said report dated 29.11.2019 is not believable. Our view is supported by the case law titled Dr. Sathy M. Pillay & Anr. Vs. S. Sharma & Ors., 2018 (1) Civil Court Cases, 247, wherein the Hon’ble Supreme Court of India has held that:

                “Medical negligence – Administration of Anesthesia – Rejection of evidence of medical expert- Consumer Forums/Courts are at liberty to reject evidence of medical expert on scrutinizing and evaluating relevant evidence and other circumstances in order to adjudicate the appropriate standard of care required in cases of medical negligence arising from administration of anesthesia”.

                In the said report (Mark-A), the board of experts has admitted that the complication, which were faced after the operation, are called Endophthalmitis and it is also the allegation of the complainant due to excess dose at the time of giving the anesthesia injection, he lost his left complete eye vision and facing the complication i.e. Endophthalmitis. However, from definition of Endophthalmitis Mark-C, it is clear that the complication of Endophthalmitis, can be possible due to cataract surgery. Moreover, Intravitreal injections are also the reason for endophthalmitis. Moreover, in para No.15 of page No.4 of his written statement, the OP No.2 has mentioned that “The said complication of optic atrophy because of anesthesia is well mention in the medical scientific literature”. Generally, the Anesthesia injection was given by some expert in this field and it is the duty of the doctor to see before the operation that the proper Anesthesia injection was given or not. But in the present case, neither the OP No.1 hospital nor the OP No.2 doctor has disclosed that who had given the said injection to the complainant and due to their medical negligency, the complainant is facing the problem of optic atrophy/Endophthalmitis, after the cataract surgery done by the OPs No.1 & 2.

11.            As per Notification dated 11.03.2002 issued Indian Medical Council (Mark B), the OPs were legally bound to save/restore the treatment record of the complainant for two years, but in the present case, the OPs No.1 & 2 have neither produced the same before the Board of experts nor before this Forum/case file, which shows gross deficiency on their part. 

12.            In support to his contention, the OPs No.1 & 2 has produced case law titled Vinod Jain and Santokba Durlabhji (supra) and its Para No.13 is relevant, which reads as under:-

                “It is material to note that the respondent No.1-Hospital promptly attended to the wife of appellant. Respondent No.2, physician, once again, attended to her promptly, and started her on antibiotic treatment. The nasal feed tube was re-inserted promptly. However, in the early hours on the next day, on 16.10.2011, the cannula stopped functioning and instead of re-cannulating the patient, oral administration of the antibiotic Polypod was found justified. It is this aspect, which according to the appellant, amounts to medical negligence. The explanation offered by respondent No.2-Doctor was that when he attended the patient at 11:00 a.m. on 16.10.2011, he found that the drip had been disconnected, on account of all peripheral veins being blocked due to past chemotherapies, and that the drip had been stopped, the night before itself, at the instance of the appellant. Taking into consideration the fact that the patient was normal, afebrile, well-hydrated and displayed normal vitals, the oral administration of the tablet was prescribed. This, according to the NCDRC was the professional and medical assessment by respondent No.2-Doctor, arrived at on the basis of a medical condition of the patient, and could not constitute medical negligence”.  

                But in the present case, the grievance of the complainant is that due to medical negligency in the cataract surgery done by the OPs No.1 & 2, he lost his complete left eye vision. Moreover, OPs No.1 & 2 has also failed to disclose that who had given the said Anesthesia injection to the complainant prior to the operation. So, in view above, we found that the facts of the said case law is different from the facts of the present case, therefore, this case law is not helpful to the case of the OPs No.1 & 2 ‘being rested on different footings.

13.            In these facts & circumstances of the case, we are of the considered view that the Ops have conducted the operation of the complainant very negligently and with a very casual attitude, due to which, the complainant is facing the problem of optic atrophy/Endophthalmitis and lost his vital organ/complete left eye vision. Hence, the OPs No.1 & 2 is deficient in providing the services to the complainant. Since the OPs No.1 & 2 are insured with the OP No.3, therefore, the OP No.3 is also severally and jointly liable to the awarded amount to the complainant, as per terms & conditions of the policy.  

14.            Now the question which arises for consideration is what should be the quantum of indemnification. In the complaint, the complainant has demanded Rs.8,20,000/- for the loss to his left eye vision. In this regard, we can rely on the case law titled Dr. Dilip C. Shah Vs. Subhashchandra, dod 26.11.2014 decided by the Hon’ble State Commission, Udaipur, Rajasthan, wherein, the appellant lost vision in his left eye due to wrong procedure done by the OP Doctor, accordingly, the appeal filed by the appellant was allowed and the OP doctor was directed to pay 4 lakh as damages and 11,000/- as litigation cost. This case law is fully applicable to the facts of the present case. So, in view of above case law, the OPs No.1 & 2 are liable to pay a sum of Rs.4,00,000/- to the complainant alongwith compensation and litigation expenses for the complete lost vision of left eye of the complainant. Since the OPs No.1 & 2 are insured with the OP No.3, therefore, the OP No.3 alongwith the OPs No.1 & 2, is also severally and jointly liable to pay the awarded amount to the complainant, as per terms & conditions of the policy in question.

15.            In view of the aforesaid discussion, we hereby allowed the complaint against the OPs No.1 to 3 and direct them in the following manner:-

1. To pay Rs.4,00,000/- to the complainant.
2. To pay Rs.5,000/- as compensation for mental agony and physical harassment suffered by the complainant alongwith  litigation expenses.

 

                The OPs No.1 to 3 are further directed to comply with the aforesaid directions within the period of 30 days from the date of preparation of certified copy of this order, failing which, the awarded amount shall carry interest @ 9% per annum from the date of order till actual payment and the complainant will be at liberty to initiate proceedings under Section 25/27 of the Act against the OPs No.1 to 3. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

Announced in open Forum:

Dt.:11.02.2020.                                                   (Neelam Kashyap)

                                                                        President.

 

(Issam Singh Sagwal),         (Neelam)       

Member                             Member.