IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                          BEFORE :       Hon’ble Mr. Justice R. SUBBIAH                              PRESIDENT

                                       Tmt  Dr. S.M.LATHA MAHESWARI                                       MEMBER

F.A.NO.224/2013

(Against order in CC.NO.324/2012 on the file of the DCDRC, Coimbatore)

DATED THIS THE 1^st DAY OF OCTOBER 2021     

V. Jeyachandran

S/o. Venkidusamy                                             M/s. Shivakumar and Suresh

Near Angappa School                                                       Counsel for

Saibaba Colony, Coimbatore                                  Appellant / Complainant

                                                                         Vs.

1.       M/s. Lotus Eye Care Hospital

Rep. by its MD

East Peiryasamy Road   

R.S. Puram, Coimbatore

2.       M/s. Lotus Eye Care Hospital

Rep. by its MD                                                                          M/s. V.S.Usha Rani

Avinashi Road, Civil Aerodrome Post                         Counsel for

Coimbatore                                                                  Respondent/ Opposite parties

          The Appellant as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission had dismissed the complaint. Against the said order, this appeal is preferred by the complainant  praying to set aside the order of the District Commission dt.17.4.2013 in CC.No.324/2012.

          This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel appearing on bothsides and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:

ORDER

JUSTICE R. SUBBIAH,  PRESIDENT   

1.        This appeal has been filed by the appellant/complainant as against the order dt.17.4.2013 passed by the District Commission, Coimbatore in CC.No.324/2012, by dismissing the complaint.

2.       The brief facts of the complaint before the District Commission are as follows:

           The complainant had a problem on his left eye, he took treatment in the 1^st opposite party hospital 3 years back, before filing the complaint.  The doctors of the 1^st opposite party advised the complainant to replace the lens situated inside the left eye ball by performing operation.  They also assured the complainant that there will not be any side effect in the operation, and once the operation is performed there will not be any problem in the eye sight throughout his life.  As per the 1^st opposite party’s advice, the complainant agreed for operation and new lens was fixed in the left eye in the 1^st opposite party’s hospital.  Eventhough the complainant had followed the 1^st opposite party’s instruction, after the operation, the complainant had suffered problem again in his left eye. Therefore again the complainant approached the 1^st opposite party.  The doctors of the 1^st opposite party checked the complainant’s left eye and informed him that the lens fixed on the left eye has moved down from the proper location in the left eye.  Hence the doctors of the 1^st opposite party hospital advised him to go for another operation to fix the lens in the exact location, which would solve his eye problem.  Hence the complainant agreed to undergo another operation, and the same was conducted on 24.3.2011 in IP.No.307898 in the 1^st opposite party hospital.  After the said operation, the complainant lost sight in his left eye.  He had spent about Rs.40000/- for the above operation.  The complainant visited the opposite party hospital several times.  The opposite party gave wrong treatment to the complainant.  At one point of time the 1^st opposite party had advised the complainant to take treatment in 2^nd opposite party hospital with a senior specialized doctor, and as per the advice of 1^st opposite party, the complainant had approached the 2^nd opposite party hospital.  The doctors of the 2^nd opposite party checked the complainant more than one time, but the problem could not be corrected.  Both the opposite parties have given wrong treatment, so the complainant approached M/s. Sankara Eye Hospital, where the doctors after checking the eye of the complainant have informed him that there is no use in giving further treatment to the complainant’s left eye, and due to the opposite parties deficiency of service, he lost his eye sight on the left eye.  Thus alleging negligence, the complainant filed the present complaint praying for compensation of Rs.15,00,000/- and cost. 

3.       The claim of the complainant was resisted by the opposite parties by filing common version as follows:

          The complainant is not a consumer, since the treatment was given without receiving any consideration.  The said treatment was given under the Government scheme.  Therefore, the complaint filed before the District Commission is not maintainable.  The operation was conducted by one Dr.Vamshidhar, who is a qualified surgeon of opthamology, and his qualification are M.B.B.S., DNB., FICO.  He has conducted several operations successfully for the past 12 years.  The opposite parties hospital is a famous hospital having headquarters at Coimbatore and different places.  The complainant came to the 1^st opposite party hospital on 29.11.2010. He underwent cataract surgery 7 years ago in the 1^st opposite party hospital for his left eye.  Dr.M.Vamshidhar of the 1^st opposite party hospital examined both the eyes of the complainant and he found that the complainant was having Right Eye Long Standing Pseudo Exfoliation with Mature Cataract with Uncorrected Visual Acuity Hand Movements and Left Eye Revealed Long Standing Pseudo Exfoliation.           

          When the complainant came for right eye problem, the doctors felt that the Right eye was not suitable for routine Phacoemulsification procedure due to Long standing Pseudo Exfoliation disease.  The doctor has performed Extra Capsular Cataract Extraction with Posterior Chamber Intra Ocular Lens on 24.3.2011.  As there was a high risk for the dislocation of Intra Ocular Lens, the doctor had to perform the said procedure with an additional support of Endo Capsular Tension Ring that would stabilize and strengthen the Capsular bag.  After the surgery, the Intra Ocular Lens was well centered with dramatic improvement and vision was maintained until his last follow-up on 11.10.2011.  The complainant achieved excellent vision in the Right Eye inspite of having matured cataract and underlying long standing pseudo exfoliation disease.  This was possible only because the surgeon took good care as it is done for any patient. 

          The complainant having experienced good vision improvement in the right eye, requested the doctor to examine his left eye and he asked the doctor to suggest treatment to the left eye also.  The complainant had a history of poor vision in left eye for number of years for which he has not taken any treatment.  As a sequel to Pseudo Exfoliation disease there was progressive weakening of the structural support of the Intra Ocular Lens within the left eye resulting in decentration of Intra Ocular Lens.  He also informed the complainant that as the Intra Ocular Lens was hanging in the mid vitreous and could be potentially dangerous to the retina, it was suggested to him to undergo Intra Ocular Lens explanation with Anterior Vitrectomy and secondary posterior Iris Claw Intra Ocular Lens Implantation with Peripheral Iridectomy.  The doctor also categorically informed the complainant that one cataract surgery alone cannot solve entire eye problem.  The opposite parties never promised the patient that all his eye problems will definitely be sorted out with the above said surgery.  The doctor informed the complainant about the pros and cons and the possible risks.  After knowing and understanding the pros and cons of the said operation, the complainant agreed for the performance of such operation.  The said surgery was performed on 4.4.2011 on the left eye and not on 24.3.2011.  The procedure involved explanation of decentered Intra Ocular Lens with Anterior Vitrectomy and was replaced by posterior Iris Claw IOL Implantation with Peripheral Iridectomy in the left eye.  All the steps involved in the procedure were done uneventfully under local anesthesia.  After such operation vision was improved to 6/36.  On subsequent follow-ups it was found that due to the risk inherent in such operation as informed to the complainant it was noticed there was high Introcular pressure as recorded with applanation tonometer.  This higher Intra Ocular pressure could also be due to the pre-existing underlying Pathological condition called Pseudo Exfoliation disease.  The doctors prescribed Anti Glaucoma Medication for the left eye, but it was not followed by the complainant post-operation.  This has led to continuous rise of Intra Ocular Pressure, and the only option available was surgical Trabeculectomy in order to prevent further loss of vision and damage to the optic nerve due to high Intra Ocular Pressure.  Since the same was continued to be high, it was suggested to undergo surgical management with Trabeculectomy procedure in the left eye as a means to control the Intra-Ocular pressure, and the procedure was done on 31.5.2011 for which the complainant did not pay any amount.  The said procedure was done as per medical literature and protocol.  Post-operation the doctor noticed that there was mild vitreous Haem with Choroidal detachment.  It is not uncommon to have choroidal detachment and vitreous heme as a consequence of Trabeculectomy procedure especially in Long Standing Pseudo Exfoliation Aphakic eyes.  This complication was managed conservatively using topical and systemic steroids.  The said choroidal detachment resolved gradually with medication and patient vision improved to 3/60 with minimal resolving vitreous Haem and Sub-Hyaloid Haem.  During this period he was asked to consult Senior Vitreo Retinal Surgeon and was given number of appointments, but he never bothered inspite of repeated reminders.  He met the Senior Vitreo Retinal surgeon only after four months, after developing inferior Horse Tear in Retina, which gradually led to the dropping of vision.  The said doctor, considering the seriousness of the complainant’s condition asked him to undergo surgery immediately, but the complainant had not considered the advise of the said doctor and showed an indifferent attitude.  Had the complainant followed the advice of the Senior Vitreo Retinal Surgeon, it could have been settled and the complainant could have got a good vision. But he met the Senior Surgeon only after four months on 12.10.2011.  The complainant never followed the advise given by the hospital, which is absolutely improper.  The opposite parties did everything to give best treatment to the left eye of the complainant and also gave proper advise to him as mentioned above.  The doctor never acted negligently in the operation of the left eye of the complainant and also in post-operative care.  The allegation of the complainant that he had spent Rs.40000/- for the said operation is absolutely false. Thus prayed dismissal of the complaint. 

4.       In order to prove the claim proof affidavits of bothsides filed alongwith 7 documents on the side of the complainant, which are marked as Ex.A1 to A7 and 13 documents on the side of the opposite parties, which are marked as Ex.B1 to B13.

5.       The District Commission, after considering the submissions made on bothside, and on perusal of the material records produced, had dismissed the complainant on the ground that the there is no negligence on the part of the opposite party. 

6.       Heard the submission from the materials placed on record, we find that on 29.11.2010 he went to the 1^st opposite party, since he had an eye problem relating to both eyes.  Where he informed Dr.Vamshidhar, that he underwent cataract surgery 7 years back on his left eye.  After 7 years of cataract operation, it was found by the doctor that there was decentration of Intra Ocular Lens because of underlying Pseudo Exfoliation disease in the left eye and on account of that there was progressive weakening of the structural support of the Intra Ocular Lens already fixed in his left eye 7 years ago. After explications of such operation and after obtaining informed consent as per Ex.A12, on 4.4.2011 surgery was performed on his left eye, and a new lens was fixed in the left eye.  The said operation is called  ‘fixing of posterior Iris Claw Intra Ocular Lens implantation with peripheral Irisdectomy’.  After such operation his vision improved to 6/36.  When the said new lens is fixed in the left eye, there is an inherent risk of high intra ocular pressure in the eye.  This high pressure could also be due to the pre-existing underlying pathological condition called pseudo exfoliation disease.  According to the opposite party, this is normal expectation and risk after such fixing of new lens.  For such disease, doctors prescribed anti-glaucoma medications but the appellant did not follow the said medication.  Had the medication suggested by the appellant been followed, the appellant would not have faced the problem again.  Since the appellant failed to do so, the ocular pressure rose to higher levels.  Therefore, the appellant was informed about the only option and necessity and need to do Trabeculectomy operation, and about the risk involved in such operation.  After getting informed consent the said operation was performed on 31.5.2011 as per the medical literature and protocol.  Inspite of that the complainant had lost his eye sight.  Therefore the entire facts of the case are not as though the opposite parties have not given good treatment, and have not taken any care on the eye problem faced by the complainant.  The only contention of the learned counsel for the appellant is that when he went to Shankara Hosptial, he was informed that his loss of vision was only due to the wrong treatment given by the opposite party.  Whereas according to the opposite parties, after operation he developed vision to the extent of 6/30.  Therefore, there is a disputed facts of medical grounds involved in this case.  Though the complainant would submit that as per the statement of M/s. Shankara Hosptial,   he had lost his eye sight due to the wrong treatment given by the opposite parties, he had not produced any document or produced any witness from the M/s. Shankara Hospital, to prove the same.  Therefore, in the absence of any expert evidence, as well as documentary evidence, it is not possible for the commission to fix the allegation of medical negligence on the shoulder of the opposite parties.  Whereas, on the side of the Respondents/opposite parties, the doctors viz. Dr.M.Vamshidar, Dr.S.K.Sundaramoorthy and Dr.Madhusudhanan have filed their affidavits to show that they have given necessary medical treatment and followed the accepted medical lines of treatment.  But the complainant had not come forward to challenge their evidences and also had not  produced any expert evidence to prove his allegation.  

          The District Commission by citing the procedure corroborated by the medical books by the authors for handling the Intra Ocular Pressure has held that the doctors have followed the accepted lines of treatment for this eye problem, and as such there is no medical negligence on their part.  In support of their findings the District Commission had also cited a judgement reported in 2011 (CTJ) 128 (SC) (CP), in which the Hon’ble Apex Court has held that “so long as a doctor follows a procedure acceptable to the medical profession of that day, he cannot be held liable for negligence”.

7.       In view of the above, we are of the considered opinion that the complainant had miserably failed to prove his case by producing any expert evidence, under such circumstances, we do not find any infirmity in the order of the District Commission.  Accordingly, the appeal deserves to be dismissed.   

8.       In the result, the appeal is dismissed by confirming the order of the District Commission in CC.No.324/2012 dt.17.4.2013.  There is no order as to cost in this appeal.

  S.M.LATHAMAHESWARI                                                                   R. SUBBIAH

               MEMBER                                                                                   PRESIDENT