Date of Filing      : 28.09.2018

                                                                                                                 Date of Disposal: 20.06.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                               .…. PRESIDENT

                 THIRU. J.JAYASHANKAR, B.A, B.L.                                                                         ..… MEMBER-I

                 THIRU P.MURUGAN, B.Com,                                                                                  ….. MEMBER-II

CC. No.47/2018

THIS MONDAY, THE 20th DAY OF JUNE 2022

 

Mrs.Chandra Srinivasan,

W/o.Mr.K.Srinivasan,

MIG Flat 7/D, Dr.P.T.Rajan Road,

K.K.Nagar,

Chennai -600 078.                                                     ……Complainant.

 

                                                 //Vs//

M/s.Aaditya Kamaraja Eye Hospital,

Rep.by its Managing Director,

No.36, 1st Main Road, Alwarthirunagar Annexe,

Alwarthirunagar, Chennai -600 087.

 

Dr.N.Rajeswari, M.B.B.S., M.S.,

No.36, 1st Main Road, Alwarthirunagar Annexe,

Alwathirunagar, Chennai -600 087.                         …..opposite parties.

 

Counsel for the complainant         :  Mr.K.Elangoo, Advocate.

Counsel for the opposite parties   : M/s.AAV Partners, Advocate. 

                         

This complaint is coming before us on various dates and finally on 13.05.2022 and upon written arguments treated as oral arguments of both parties and upon perusing the documents and evidences, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

The present complaint was filed U/S 12 of Consumer Protection Act 1986 alleging deficiency in service against the opposite parties and to pay a sum of Rs.10,00,000/- (Rupees ten lakhs only) for the gross medical negligence in carrying out the cataract surgery and implanting the Multifocal lens in both the eyes and to pay a sum of Rs.5,00,000/- (Rupees Five lakhs only) towards the deficiency in service rendered in such surgery and to pay a sum of Rs.4,00,000/- towards the resultant mental agony suffered and to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards the expenses and cost of this complaint. 

Summary of facts culminating into complaint:-

 

Present complaint was filed against the opposite parties alleging medical negligence.  It is submitted that the complainant has been wearing eyeglasses for vision correction for myopia for a very long time and in 2017 she learnt that there was no development due to old age.  But there was no blurry vision and no trouble in writing and reading.  The 2nd opposite party who is consulting an ophthalmologist in the 1st opposite party hospital recommended and assured that the removel of Senile immature cataract could be performed at any stage and it no longer require ripening of the lens and a phaco with multifocal Foldable lens was implanted in both eyes.  As on 24.05.2017 the surgery was done for rectifying the defective vision and Senile immature cataract on her right eye.  The cost incurred for the surgery was Rs.90,000/- for implanting multifocal lens in one eye. Altogether she paid Rs.1,80,000/- for both eyes. Even after surgery she had defective vision and made complaint to the 2nd opposite party at the time of post surgery review about the poor vision and her difficulty to read without eyeglasses.  But the 2nd opposite party examined her eyes and said that there is no defect in her vision and she does not require eyeglasses anymore including for reading pruposes.  The complainant states that she is an educator and academician and her profession entails extensive reading and writting.  Then she consulted Dr.D.P.Prakash a qualified ophthalmologist and optometrist to check her eyes who informed that she had a considerable spherical and cylindrical power in both the eyes and the same was due to incorrect fit of lens or  measure of eye power. When the complainant informed about the privious surgery and the cost incurred for the surgery it is found that  the cost incurred was several times higher than the average market cost for the cataract surgical procedure. Thus the oppostie parties have charged exorbitantly which is an unfair trade practice.  When the complainant visited the 2nd opposite party in the 1st opposite party’s hospital for review, the 2nd opposite party wilfully neglected to prescribe proper eyeglasses to rectify the eye power. Thus legal notice was issued on 11.11.2017 to the opposite parties calling upon them to pay a sum of Rs.25,00,000/- compensation for medical negligence, deficiency in service for which a reply notice was issued on 14.12.2017  alleging that the blurry vision suffered by the complainant was due to her contributory negligence and dry eyes symptoms.  The opposite party miserably fails to recognize the actual complaint of the complainant from suffering from defective vision and not blurry vision.  Further the fact of dry eyes symptoms was never informed to complainant nor her son.  Thus alleging that the 2nd opposite party has not given adequate post operative care inspite of spending around Rs.1,80,000/- towards treatment, the complaint was filed.

Crux of defence raised by opposite parties:

The opposite parties filed version dening the allegations contended interalia that the surgery was carried out successfully on the right eye and IOL was implanted after removal of cataract.  It is admitted that the 2nd opposite party along with the anesthetist.  The patient was discharged on 30.05.2017 in good condition as both the eyes had healed well.  However she came back only after 15 days and the patient was seen by the 2nd opposite party who found that the vision had improved after post cataract surgery. As the complainant had complained of dryness in the eyes and blurry vision the 2nd opposite party advised the complainant to drink 3 litres of water and prescribed lubricating eye drops. The complainant when again came back for review the 2nd opposite party examined the patient and found that vision had tremendously improved and stabilized, both cornea were clear and the complainant also said that the dryness in the eye was better.  Again on 03.07.2017 she came back for review and tests were carried out and found that the vision had stablized.  Thereafter, the complainant did not turn up.  Further the 2nd opposite party after review at no point of time advised for non requirement of eye glasses and it is submitted that the 2nd oppostie party made it clear that it was take 6 weeks from the date of surgery for the cornea to heal and for the refractive power to settle down in both eyes. It is also submitted that eye glasses can be prescribed for surgery only after 6 weeks and the complainant never came up to the opposite party hospital after 5 weeks.  It is denied by the opposite parties that the eye power in both eyes of the complainant was only due to incorrect fit of the lens by them. Hence the opposite parties sought for the dismissal of the complaint.

On the side of complainant proof affidavit and documents A1 to A7 were marked  and on the side of the opposite parties proof affidavit of the Managing Director was filed along with documents marked as Ex.A1 to Ex.B5.

 

Point for consideration:

Whether the allegation of medical negligence as complained by the complainant was proved by her with sufficient evidence and medical literature?

2) If so to what relief the complainant is entitled?

Point Nos 1&2:

On the side of the complainant following documents were filed in proof of his allegations;

Medical bills to the cataract surgery issued by the 1st opposite party dated 25.05.2017 was marked as Ex.A1;

Discharge Summary dated 30.05.2017 was marked as Ex.A2;

Medical bill for the 2nd surgery underwant by the complainant with Dr.D.P.Prakash, American Eye Care Centre dated 11.09.2017 was marked as Ex.A3;

Legal notice issued by the complainant’s counsel to the opposite parties dated 11.11.2017 was marked as Ex.A4;

Reply notice given by the opposite parties to the complainant’s counsel dated 14.12.2017 was marked as Ex.A5;

Email communications was marked as Ex.A6;

Air Tickets was marked as Ex.A7;

On the side of the opposite parties following documents were filed in proof of his allegations;

Case summary of the complainant was marked as Ex.B1;

Discharge Summary of the complainant was marked as Ex.B2;

Photographs of the complainant was marked as Ex.B3;

IOL Master calculation sheet was marked as Ex.B4;

Medical Literature was marked as Ex.B5;

The crux of the written arguments of the complainant is nothing but the replica of the complaint by which alleged that medical negligence in surgery was done by the opposite parties for her senile immature cataract.  It is the allegation of the complainant that post operative care was not proper and there was defect in her vision after surgery for which the opposite parties did not prescribe any power glasses.

It is also her allegation that as per the version of complainant an optometrists Dr.D.P.Prakash who opined that complainant had spherical and cylindrical in both eyes after her surgery was due to improper fixation of the lens by the opposite parties during the surgery.  It is also her allegation that the defect of dry eyes was never intimated to her nor to her son and also her grivence was that the opposite party charged an exorbitant amount for surgery when compared to other hospitals.  Thus she sought the opposite parties a compensation of Rs.10,00,000/- for medical negligence carried out during the cataract surgery along with Rs.5,00,000/- towards deficiency in service rendered by them in implanting the Multifocal lens in both eyes and also Rs.4,00,000/- towards mental agony suffered by them and to pay a sum of Rs.50,000/- towards cost of the complaint.

When we perused the written arguments submitted by the opposite parties they deny all the allegations of the complaint by stating that they are proper in performing the surgery and that the allegation of exorbitant amount charged is baseless and they argued that the fee charged  by the opposite parties includes surgeons charges, assistant charges, anaesthetist charges, equipment charges, foldable lens, theatre charges, room rent, medicines, macula-OCT, Dic-OCT, glaucome workup (including pachy) and viscoat. It is their argument that they followed usual procedure for eye glasses only after six weeks of surgery but the complainant never turned up after five weeks of surgery.  

On appreciating the arguments of the complainant, we are unable to accept the contention raised by the complainant with regard to her allegation of medical negligence against the opposite parties.  The complainant needs to establish her case by evidence, medical literature and expert opinion that the medical professional  has deviated from the prescribed standard duty of care and skill in not treating the patient properly and that the deviation of the duty has casued some damages to the patient.  But in the present case though the complainant has submitted that the opposite parties had performed the surgery and has not properly fixed the multifocal lens,no evidence was produced by the complainant in support of the same.  Even though a statment was made by one of the optometrists Dr.D.P. Prakash that defect in vision after her surgery was due to improper fixation of the lens by the opposite parties during the surgery, no medical records were produced to show that there is defect in the skill exercised during  cataract surgery and also that complainant has submitted that the opposite parties did not recommanded any eye glasses for her after surgery and the same was properly rebutted by the opposite parties by stating that they would advise for her eye glasses only after six weeks of surgery and that the complainant did not turn up after five weeks of surgery.  This submission was not denied by the complainant in her proof affidavit or written arguments.  Thus it is proved that the complainant did not come forward for the review check up after six weeks of surgery. Eventhough email communication i.e., Ex.A6 was filed in proof of the allegation raised against the opposite parties, we conclude that no sufficient proof was filed by the complainant in respect of her allegations of medical negligence and deficiency in service committed by the opposite parties in respect of the eye surgery performed and also fixation of multifocal lens.

In a recent order rendered by National Consumer Disputes Redressal in Vishnu Priya Giri (Deceased) vs G.M Modi Hospital Research Centre  on 13 May, 2022, the Commission had held as 

 In negligence cases, one must prove that there was a duty, that duty was breached, and the breach of that duty caused damages. Negligence per se is not a separate cause of action from negligence suits.  Negligence per se, however, assumes the duty because of public policy or law. "Negligence per se" is defined by the legal field as "negligence due to the violation of a public duty under a law that defines the failure of care required to constitute negligence. Negligence per se may also be declared when a person does or omits to do something which is so beyond reasonable behaviour standards that it is negligent on its face."

 

We would like to rely upon few decisions of the Hon'ble Supreme Court on medical negligence.  In the case of Achutrao Haribhao Khodwa & Others V State of Maharashtra & others, reported in 1996 SCC (2) 634,  the Hon'ble Supreme Court noticed that:

"in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other, he could not be had liable if the course of action chosen by him was acceptable to the medical profession.

The Hon'ble Supreme Court also held that every mishap shall not be construed as a negligence of the treating doctor or the hospital to fasten the liability. In the present case also the complainant did not prove any injury that has resulted out of the surgery performed by the opposite parties. Based on the foregoing discussion, in our view, in the instant case, the medical negligence could not be conclusively attributed against the opposite parties was not proved sufficiently

Hence we hold that the complainant failed to prove the allegation of medical negligence against the opposite parties and therefore the complainant is not liable any relief in the complaint. Answer this point accordingly.

In the result, this complaint is dismissed.  No order as to cost. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 20th day of June 2022. 

 

Sd/-                                                               Sd/-                                            Sd/-

  MEMBER-I                                        MEMBER-II                                   PRESIDENT        

 

List of document filed by the complainant:-

 

Ex.A1 25.05.2017 Medical bill to the cataract surgery issued by the 1st opposite party Xerox

Ex.A2 30.05.2017 Discharge summary. Xerox

Ex.A3 11.09.2017 Medical bills for the 2nd surgery underwent by the complainant with Dr.D.P.Prakash, American Eye Care Centre. Xerox

Ex.A4 11.11.2017 Legal notice Xerox

Ex.A5 14.12.2017 Reply notice given by the opposite parties. Xerox

Ex.A6 …………… E mail communications. Xerox

Ex.A7 …………… Air tickets. Xerox

 List of documents filed by the opposite parties:- 

Ex.B1 ................ Case summary. Xerox

Ex.B2 ................ Discharge summary. Xerox

Ex.B3 ................ Photographs of the client. Xerox

Ex.B4 ............... IOL master calculation. Xerox

Ex.B5 ............... Medical Literature. Xerox

 

 

 

Sd/-                                                        Sd/-                                           Sd/-

MEMBER  I                                    MEMBER-II                                PRESIDENT