BEFORE THE ADDITIONAL BENCH OF A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD.
FA.No.1346/2006 against C.C.No.112/2006, District Forum-I, Hyderabad.
Between:
Dr.P.Swarup,
Of Swarup Eye Colony,
145, Dwarakapuri Colony,
Panjugutta, Hyderabad. .Appellant/
Opp.party
And
Mohammed Ateeq Ahmed
R/o.6-5-89, Nalsab Gadda,
Sangareddy, Medak District. Respondent/
Complainant
Counsel for the Appellant: Mr.S.Ravindranath
Counsel for the Respondent. Mr. C.Pratap Reddy
FA.No.1433/2006 against C.C.No.112/2006, District Forum-I, Hyderabad.
Between:
Mr.Mohammed Ateeq Ahmed,
S/o.Aneefuddin, age 45 years,
Occ:Work shop,
R/o.6-5-89, Nalsab Gadda,
Sangareddy, Medak District. Appellant/
Complainant
And
Dr.P.Swarup,
Swarup Eye Colony,
145, Dwarakapuri Colony,
Panjagutta, Hyderabad. .Respondent/
Opp.party
Counsel for the Appellant: Mr.C.Pratap Reddy
Counsel for the Respondent. Mr. S.Ravindranath
QUORUM:SRI SYED ABDULLAH, MEMBER.
AND
SRI K.SATYANAND, MEMBER.
WEDNESDAY, THE FIFTH DAY OF AUGUST,
TWO THOUSAND NINE
ORAL ORDER: (Per Sri K.Satyanand, Hon'ble Member .)
***
These two appeals, one by the sole opposite party and the other by the complainant arise out of the same order passed by District Forum-I, Hyderabad. Hence they are being disposed of by a common order.
The facts that lead to filing these appeals-one by the doctor to absolve him of the charge of deficiency in service and the other by the complainant for enhancement of compensation, are briefly as follows:
The complainant claimed to have approached the opposite party for cataract operation of left eye and the opposite party agreed to perform the operation and accordingly got him admitted as inpatient on 2-9-2005 at opposite party hospital. The complainant claimed that the opposite party conducted the operation on the left eye in negligent manner and caused large hole and two small slit tears inferior to the inferotemporal vein in the left eye and there was huge bleeding and he was unable to control the same. The complainant asserted that the opposite party charged Rs.15,500/- towards operation charges and discharged him with an advice to approach Vitreo Retinal institute, Secunderabad for control of bleeding from the left eye. The doctor of the Vitreo Retinal Institute, Secunderabad controlled the bleeding through laser treatment but was unable to cure the hole and vision perfectly. Therefore, the complainant again approached opposite party and he was referred by opposite party to L.V.Prasad Eye Institute. The complainant claimed to have joined L.V.Prasad Eye Institute and after considerable period of treatment, the authorities of L.V.Prasad Eye institute issued a medical report stating that the left eye view was hazy due to vitreous haemorrhage and large oval macular hole and two small slit tears inferior to the infero temporal vein were detected and that the complainant will not benefit from any surgery or further laser treatment to the left eye. The complainant submitted that he lost vision in the left eye on account of rash and negligent treatment of the opposite party and got issued a legal notice for which the opposite party replied stating that there was no negligence. Hence the complaint for a direction to the opposite party claiming Rs.5,00,000/- as compensation.
Opposite party filed a counter denying the allegations made in the complaint and stated that the operation was not conducted in a negligent manner and thereby causing large hole and two small slit tears inferior to the inferotemporal region of the retina of left eye. He asserted that the anesthetist, Dr.Narendernath was administering the injection for the peribulbar block and the complainant moved his head suddenly by which he grew suspicion that it might have caused the perforation of the globe and the same was conveyed by the anesthetist to him and he carefully examined the eye and since no gross findings were present to indicate a perforation, he decided to proceed with the cataract surgery as it would enable him to have a clear view of the retina which was not possible in the presence of a dense cataract. The perforation if present could be detected and managed only after the cataract operation. Opposite party submitted that the cataract operation was done without any negligence and unless the cataract operation was conducted there was no chance to find out whether perforation had occurred. He stated that after the cataract operation was conducted, it was confirmed that there was a tiny perforation or puncture of the globe with the needle during anaesthesia and after the cataract operation, the fundus was examined immediately and a perforation in the lower temporal quadrant with vitreous hemorrhage was detected for which he was referred for prompt treatment to the retinal specialist, Dr.Satish Agraharam. The said doctor performed Barrage laser as a treatment to seal the tiny perforation and examined the complainant on 3-9-2005 and found that the eye was quiet, the OIL was well positioned and further advised medical treatment and rest. He further stated that the complainant was sent for a second opinion to Dr.Taraprasad Das of L.V.Prasad Eye Institute and got reviewed by him. As per his letter dated 1st October, 2005 to him, “the visual acuity remains finger counting close to face in the left eye. The vitreous hemorrhage has almost cleared and two small slit tears inferior to the infer temporaral vein were detected”. The opposite party asserted that in cataract surgery the top layer of the membrane was cut and the cataract was removed with the help of specialized instrument and these instruments cannot penetrate to the extent where two small slits to the infero temporal vein of the left eye were seen and therefore ruled out negligence.
The complainant filed his affidavit and by way of documentary evidence relied upon Exs.A1 to A11 and on the other hand, opposite party relied on Ex.B1.
On a consideration of the evidence adduced on either side, the District Forum concluded that there was deficiency of service on the part of opposite party and accordingly directed the opposite party to pay Rs.40,000/- as also Rs.2,000/- towards compensation.
Aggrieved by the said order, the counsel for opposite party doctor filed F.A.No.1346/2006 alleging that the District Forum erred in law in not appreciating the legal aspects, citations and various text books cited. He stated that the District Forum did not record the findings that the doctor was medically negligent and had not assigned any reasons as to how the complainant was entitled for Rs.40,000/-. He further stated that the Forum failed to appreciate that only after performing the cataract operation the examination of the retina whether damaged or not could be found.
The learned counsel for the complainant filed F.A.NO.1433/2006 asserting that when it was proved that there was negligence on the part of the opposite party doctor in conducting the cataract operation, the District Forum ought to have granted Rs.5,00,000/- as claimed instead of granting Rs.40,000/- towards treatment and transport. He submitted that the L.V.Prasad Eye institute had issued a medical report Ex.A8, stating that the left eye view was hazy due to vitreous hemorrhage and large oval macular hole and slit tears inferior to the infero temporal vein and he would not benefit from any surgery and further laser treatment for the left eye and therefore the District Forum ought to have awarded the compensation prayed for.
The points that arise for consideration in these appeasl are
1) Whether the complainant could make out against opposite party a case of deficiency in service? If so, what is the extent of such deficiency attributable to the opposite party?
2) Whether the complainant could make out a case for enhancement of the relief granted?
Whether there are any good grounds to interfere with the order of the District Forum, to what relief?
1. It is the case of the complainant that the opposite party performed cataract operation on his left eye and on account of his negligence in the conduct of the operation, his vision was impaired actuated by perforation of the eye ball, ophthalmic hemorrhage etc.
There is undisputed evidence especially by way of admission on the part of opposite party per his counter that the operation did not go off all that well. In the process of giving peribulbur injection for anesthetizing the eye under operation, there was suspected perforation of the globe. This part relates to the overt acts of the anesthetist, Dr.Narender. In as much as the said doctor is not a party here, we have no justification to evaluate the element of negligence, if any, on his part. For the same reason, his negligence, if any, as we cannot avoid incidentally referring to the truth that the perforation and the consequent hemorrhage were instrumental in impairing his vision and rendering any further surgery of the said eye infructuous according to the L.V.Prasad Eye Hospitals as per Ex.A8, cannot be attributed to opposite party to make him liable vicariously for that part of negligence, if any too. The following admissions in the counter and excerpts in the document amply prove that the plight of the complainant was due to the mishap that occurred during administering injection for peribulbar block by the anesthetist.
Paras 4, 6, 7 and 8 of the opposite party’s counter read as follows:
‘4. It is submitted that in this case while the anaesthetist Dr.Narender Nath was admistering the injection for the Peribulbar block, the complainant had moved his head suddenly, which led to suspicion that it could have caused the perforation of the globe. This was conveyed to the OP. As a prudent Doctor the OP has carefully examined the eye and since no gross findings were present to indicate a perforation it was decided to proceed with the cataract surgery, as it would enable the OP to have a clear view of the retina, which is not possible in the presence of a dense cataract. The perforation if present could be detected and managed well only after the cataract operation.
6. It is submitted that the opposite party has taken all precautionary steps right from the beginning to the end of the surgery. It was suspected at that time there was a possibility of perforation or puncture of the globe with the needle during anaesthesia. After the cataract operation the Fundus was examined immediately and a perforation in the Lower Temporal quadrant with Vitreous hemorrhage was detected.
7. It is submitted that immediately on the detection of the perforation the complainant was sent with in a few hours to Dr.Satish Agraharam an experienced retinal surgeon who has the required laser equipment and expertise for treating the problem. So the complainant was referred to the above mentioned surgeon on 2-9-2005 immediately in his own interest for further laser treatment. The said doctor is a well qualified retinal perforation on the same day. The complainant was examined on 3-9-2005 once again when it was found that the eye was quiet, the IOL was well positioned and further advised medical treatment and rest.
8. It is further submitted that the complainant was sent for a second opinion to Dr.Taraprasad Das of L.V.Prasad Eye Institute and was reviewed by him on 1st Oct. 2005 after initial check up on 14th Sep 2005. As per his letter dated 1st Oct. 2005 to Dr.P.Swarup (OP), the visual acquity remains finger counting close to face in the left eye. The vitreous hemorrhage has almost cleared and two small slit tears inferior to the infer temporal vein were detected and no further treatment was advised.’
No doubt all those admissions are closely associated with exculpatory rider. But then those circumstances militating against the negligence of the anesthetist cast a heavy burden upon the opposite party to prove those circumstances. For example, the opposite party maintained in para 4 of his counter that while the anesthetist , Dr.Narendernath was administering the injection for the peribulbar block, the complainant had moved his head suddenly. Where is the evidence for that? Opposite party did not even file his own affidavit not to speak of the affidavit of Dr.Narendernath. So those countervailing riders to his admission that remained without proof the burden of which rests on him, are liable to be eschewed. Thereby we get unqualified admission from his counter which go to show that the complainant unusually suffered a perforation and a tear or two to the globe of his left eye during the penultimate operation as a preclude to the cataract surgery. This aspect is corroborated even by the independent evidence over and above the admissions alluded to in the foregoing discussion. The one and only piece of evidence of utmost importance in this regard is Ex.A8, the medical report of L.V.Prasad Eye Institute. The entire text of Ex.A8 is given below:
‘Mr.Ahmed 45 year old gentleman was examined at our institute on 14th
September, 2005. He complained of sudden decrease in vision in left eye.
He had undergone cataract surgery in right eye 4 years ago and in left eye
2 weeks ago.
On examination here, the presenting visual acquity was 20/60 in right eye
and finger counting close to face in left eye. The intraocular pressure was
17 and 16 mm Hg in right and left eye respectively. Both eyes were
Pseudophakic. Fundus examination of the right eye showed attached
retina. Left eye view was hazy due to vitreous haemorrhage mostly
inferiorly. This was confirmed by Ultrasonography. There was no
retinal detachment.
Based on the above clinical findings, a diagnosis of pseudophakia in
both eyes and vitreous haemorrhage in left eye was made. We have
put him on oral vitamin C 500 mg once a day for one month in addition
to topical Ciplox-D and Cycologyl.
He was reviewed on 14th September, 2005. On examination, the visual
acquity remains finger counting close to face in the left eye. The
vitreous haemorrhage has mostly cleared. A large oval macular hole and
two small slit tears inferior to the inferotemporal vein were detected.
Mr.Ahmed was explained that he will not benefit from any surgery or
further laser treatment for the left eye’.
It is evident from the aforementioned report that the root cause for the damage to the left eye was the vitreous hemorrhage. It is evident from the counter itself that the said hemorrhage was due to perforation. The opposite party made a vainbid to bail out the anesthetist on merits from any sort of liability; but his exoneration was not on that account. It is the complainant that has to take that credit as, indeed, he left him alone. Be that as it may, the present scenario of adjudicating the negligence of the surgeon isolating if from the impact of the overtacts of the anesthetist undoubtedly presents an anomaly. Yet an endeavour is made to segregate these two episodes and embark upon the appreciation of evidence, in the context and in so far as it relates to how the opposite party got on in the matter of dispensing the medical treatment.
By now it is abundantly clear that the opposite party was aware even before he commenced surgery that something had gone wrong during the course of administering anaesthesia. Then we have to see how far he lived upto the guide lines he himself cited. Before that we have to first see as to what is the probative value of Ex.B1 opinion of some doctor of his choice. He did not even file an affidavit and tender himself for cross examination if so required. Nor did opposite party take us through any law that allows its reception as authentic opinion without attendant formalities. Reverting to the relevant medical treatises he relied upon to substantiate his point that he was right in going ahead with the planned surgery inspite of suspected perforation. We are afraid how far his own citation of medical literature stands him in good stead. In this regard, he relied upon
<!--[if !supportLists]-->i) <!--[endif]-->ocular complication of needle perforations during retrobulbar and peribulbar injections
By
Hanna Rodriguez, M.D.
&
Richard Spaide, M.D.
<!--[if !supportLists]-->ii) <!--[endif]-->Complications of local ocular Anesthesia
By
Walter C.Peterson M.D.
&
Myron Yanoff M.D.
In this case, we are concerned with peribulbar injection only because it is not in dispute that it was what was given. We reached the point where this discussion has to be further narrowed down. For the purposes of this adjudication what all that we have to see is whether the opposite party was right in going ahead with the surgery even after perforation more precisely suspected perforation. Whether it is perforation or suspected perforation, it makes no difference in requiring of the doctor to measure up to the standards before taking a step into future line of action.
At page 575 of the first of the books cited above, matter relevant to this aspect is discussed under diagnosis as under:
‘If any of these signs occur, an immediate funduscopic evaluation
should be attempted. If perforation is confirmed, the planned
procedure should be cancelled and management should proceed.
In cases where a dense cataract prevents visualization of the
Fundus, and the eye is not hypotonus, B,scan ultrasonography
can be used to evaluate the posterior pole for hemorrhage or
retinal detachment. If neither is present, the surgeon may
consider proceeding with the planned lens extraction. Retinal
evaluation and treatment for tears should then he performed
immediately after the surgery’.
The other citation page 26 goes a step further and commends that anesthetic injection should be the responsibility of the ophthalmologist because of his or her knowledge of the ocular anatomy. It however proceeded to say that in the event of a recognized penetrationor perforation without hypotony, the surgeon may proceed if cataract surgery is scheduled so that visualization of the retina will be easier.
Though the medical literature in part supports the view taken by the opposite party as to the correctness of his judgement, all those propositions are not unconditional. Those suggestions can be followed only after the requisite investigations and tests give a green signal without contra indications. At this juncture, the opposite party cannot but be critised for not producing even an iota of evidence by way of case sheet and other medical transcripts revealing as to what were the tests conducted before moving to conduct surgery after perforation was noticed. Before surgery the surgeon, in a case like this, is supposed to rule out hypotony and has to do fundoscopic evaluation and if cataract prevents visualization of the fundus, and the eye is not hypotonous B-scal utra sonography canbe used to evaluate the posterior pole for hemorrhage or retinal ditachment etc., For all this no evidence is produced. This lapse on the part of the opposite party marks the deficiency in service. After all said and done, the liability of the opposite party yet, remained partial as already articulated in the foregoing paragraphs.
In this view of the matter, we have no hesitation to hold that the District Forum rightly found the opposite party deficient in rendering proper service he undertook to do.
With this we come to the examination of the question about the adequacy of compensation granted by the District Forum. As already observed the complainant abandoned the bulk of cause of action as the root cause of his plight was elsewhere which he did not opt to explore. Even the bills proved show an expenditure of less than Rs.20,000/-. The District Forum awarded Rs.40,000/-. We feel the compensation given by the Forum is reasonable. We do not see any ground to enhance it. In these circumstances both the appeals are liable to be dismissed.
Accordingly both the appeals are dismissed but without costs.
MEMBER.
MEMBER
Dated 05-8-2009