Tamil Nadu

StateCommission

CC/8/2005

V. Prabakaran - Complainant(s)

Versus

M/s. Sankara Nethralaya, Rep. by Dr. S.S. Badrinath & anr. - Opp.Party(s)

S. Baskaran,

28 Apr 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

             Thiru. R.VENKATESAPERUMAL    ...  MEMBER

                           

C.C. No.8 of 2005

 

                                 Orders pronounced on:  28.04.2022

 

V. Prabakaran,

Flat No.303, Kavitha Nivas,

46, Pachiyapa College Hostel Road,

Chetpet, Chennai 600 031.                                                                                                                          ... Complainant

(Amended as per orders, dt.26.11.12, in CMP No.161/12)

 

Vs.

 

1. Medical Research Foundation,

Rep. by its Director,

No.18, College Road,

Chennai 600 006.

(Amended as per orders, dt.25.11.2009, in MP No.350/19)

 

2. Dr.Sujatha Guha,

Surgeon,

M/s.Sankra Nethralaya,

No.18, College Road,

Chennai 600 006.                                                                                                                                   ...Opposite Parties

 

             Counsel for Complainant : M/s.S.Baskar

 

             Counsel for OPs               : M/s.J.Dharmarajan

 

 

          This complaint came up for final hearing on 19.04.2022 and, after hearing the arguments of the counsels and perusing the materials on record and having stood over for consideration till this date, this Commission passes the following:-

 

O R D E R

 

R.Subbiah, J. - President.

 

        The complainant herein seeks this Commission to direct the Opposite Parties to,

1. repay Rs.30/- paid for issuance of medical certificate to the 1^st OP;
2. pay Rs.5 lakh towards the expenses to be incurred by the complainant for further treatment;
3. re-pay Rs.11,400/- paid to the 1^st OP towards Hospital Charges; and
4. pay Rs.20 lakh as compensation for the loss, mental agony, hardship, inconvenience and injury suffered by the complainant due to the negligence of the OPs.

 

        2. The case of the complainant, as narrated in the complaint, in brief, is as follows:-

        The complainant, a diabetic for the past 18 years and suffering from cataract in the left eye with blurred vision, had consulted the 1^st OP/Hospital on 02.11.2004 and the Doctors there advised for removal of cataract and lens replacement by surgery, assuring that 95% of the vision would be revived on surgery. He consented for the same and, although he underwent necessary medical check-up on 06.11.2004, the date of surgery had to be postponed since the blood sugar was not under control.  He also underwent lens measurement test and, as per the records of the OPs, lens was also prescribed to be inserted at the time of removal of cataract.  On 12.11.2004, after the lab report to the effect that the sugar level was under control, he was declared fit for the surgery that was scheduled on 18.11.2004.  The surgery schedule involved removal of cataract and implantation of an Intra-ocular lens (in short IOL) under the procedure called Extra Capsular Cataract Extraction (in short ECCE), which is an old technique in which a 12 mm incision is performed in the eye to extract the lens as a whole and the lens is placed inside manually and multiple sutures are required to seal the eye after surgery. In spite of the Hospital having the facility to adopt the latest phaco-emulsification procedure, the complainant was advised ECCE procedure because of his eye condition.  While so, after surgery, he was informed that the cataract was removed, however, the lens was unable to be implanted due to non-availability of time and specialized surgeon.  He was also advised to go for another manual surgery for implantation of the lens after one month. When he questioned about the assurance given by the OPs before the surgery, without giving proper reply, they discharged him on 19.11.2004.  On seeing the discharge summary, he came to know that, instead of adopting ECCE procedure, negligently, the OP did the surgery under a different procedure called phaco-emulsification, under which, cataract is extracted through a smaller 3 mm incision and a foldable IOL is then introduced through the 3 mm incision, without any suture as the incision is self-sealing. The case summary provided by the OP is prepared in such a way that it does not even disclose the procedure advised and it simply says that secondary lens implantation required on later date for visual rehabilitation.  Due to the health and financial condition of the complainant, he is not in a position to undergo one more surgery. As a result of the negligence in conducting surgery, his vision got further deteriorated which clearly proves deficiency in service on the part of the OPs.  Hence, he issued the legal notice, dated 21.11.2004, calling upon the OPs for payment of Rs.25 lakh as compensation, but in vain.  Therefore, he has come up with this Complaint for the relief, as stated supra.

 

        3. The 1^st OP resists the complaint by filing a version, wherein, among other things, it is stated as follows:-

        The 2^nd OP, who performed the surgery, has considerable experience and competence as a Surgeon.  She has performed more than 2500 surgeries till date.  The complainant was first examined at the 1^st OP/Hospital on 02.11.2004 to have noticeable decreased vision in both the eyes for the past one month.  He was a known case of diabetes mellitus for the past 18 years and he had also undergone laser treatment to his eyes about one year back elsewhere. During initial examination, his best-corrected visual acuity was 6/6 N8 in the right eye and 6/24 N36 in the left and the slit lamp examination showed nuclear sclerosis and posterior sub-capsular cataract in both the eyes and no rubeosis iridis was evident.  The intraocular pressure, as estimated by applanation tonometry, was 10 mm of Hg in both the eyes.  Dilated fundus examination with indirect ophthalmoscope showed altered sub hyaloid haemorrhage in the right eye and evidence of laser PHC done in both the eyes.  The complainant was examined by Dr.Pukhraj Rishi, Vitreo-Retinal Consultant of the OP and was advised Pan Retinal Photocoagulation in the right eye which was done on 2^nd and 5^th November, 2004.  The complainant was also advised to undergo cataract surgery with Intraocular Implantation in the left eye under guarded visual prognosis.  The 2^nd OP performed the surgery after due examination about the fitness and, even before surgery, the complainant was duly informed by the 2^nd OP about the guarded visual prognosis of the surgery due to the diabetic retinopathy he was suffering from. As such, it is false to state that the complainant was ever assured that 95% of the vision would be revived on surgery.  

        During cataract surgery, since zonular weakness was noticed in the left eye, placement of the IOL was not considered. The complainant was duly informed of the intra operative finding of zonular weakness and the reason for not implanting the IOL.  That being so, the OPs regret to note the allegations in the complaint that ‘after surgery the complainant was informed that the cataract was removed and the lens was unable to be implanted due to non-availability of time and specialized surgeon’. In spite of clarifying the position in the reply notice, dated 30.11.2004 sent by the OPs, the complainant has deliberately, and with a mischievous intent, chosen to make similar allegations in the complaint.  Since the IOL was not implanted only due to zonular weakness, bereft of any basis or bona fides, the complainant alleges deficiency in service; hence, the complaint is liable to be dismissed in limini.

 

     4. To substantiate the claim and counter-claim, both sides have filed their respective proof affidavits and marked 15 documents as Exs.A1 to A15 and Exs.B1 to B15 respectively. 

 

         5. Learned counsel for the complainant would refer to Ex.A4/Surgery Schedule and submit that, as per the same, the complainant was advised cataract removal and IOL implantation under ECCE procedure in spite of the Hospital having the facility to adopt the latest phaco-emulsification procedure, since the former is an old technique in which a 12 mm incision is performed in the eye to extract the lens as a whole and the lens is placed inside manually and multiple sutures are required to seal the eye after surgery.  While so, on seeing the discharge summary, the complainant came to know that, deviating from the surgery schedule under Ex.A4, the 2^nd OP performed the surgery under a different procedure called phaco-emulsification instead of doing it under the ECCE Procedure.  Further, after surgery, he was informed that only the cataract could be removed and that the lens was unable to be implanted due to non-availability of time and specialized surgeon and was accordingly asked to go for another manual surgery for implantation of lens after one month. As such, negligence on the part of the 2^nd OP in conducting the surgery in a hurried manner without even referring to surgery schedule and without the assistance of retino-specialist to implant the lens, is glaring and apparent.  As a consequence of such negligence, the vision in his left eye got deteriorated and thereby, the complainant has been put to physical and mental agony. By referring to Ex.A14, it is pointed out that, during the pendency of the complaint, the complainant consulted the Eye Research Foundation, Vijaya Hospital, where he was performed another surgery, implanting the lens in the left eye on 11.01.2016 and only thereafter, the defect in the vision got cured. Thus, from 19.11.2004 till 11.01.2006, vision in the left eye of the complainant continued to be blurring.  Because of the surgery performed by the 2^nd OP in a negligent manner without fixing the lens,  the complainant had to undergo another surgery in the same left eye nearly after 14 months with pain & suffering and mental agony.  Therefore, since deficiency in service on the part of the OPs is glaringly apparent, the complaint may have to be allowed, he pleaded.

 

        6. Per contra, learned counsel for the OPs would submit that, in exceptional cases, where the cataract surgery leads to complications, such patients are kept under supervision for a day or two with administration of eye drops and that, even if a secondary surgery is required, they are discharged with instructions to report on a date suited for another surgery.  In the case on hand, the complainant is a too fragile person health-wise with a medical history that he is a severe diabetic for a couple of decades, treated with anti-diabetic agents but with poor control, and that he was also on treatment for systemic hypertension, chronic stable angina and history of dyspnoea. Having treated for tuberculosis meningitis in 1992, later he underwent CABG triple vessel disease in 2008 and he is also suffering from cellulitis left leg ecoli and bilateral corn foot ischemic heart disease.  Prior to the present treatment, one year ago, he underwent laser surgeries in both eyes elsewhere.  While so, after taking various tests and all necessary precautions, the OPs, while fixing the surgery date as 18.11.2004, duly informed him about the procedure and, having given consent to perform the surgery only under the phaco-emulsification procedure, in the complaint, he totally misrepresented otherwise.  Further, due to prolonged consumption of medicines regularly, his retina has become very weak; while so, during the course of surgery, since zonular weakness was noticed, IOL could not be placed and these aspects are clearly reflected in the case sheet filed under Ex.B9.  The condition was well explained to the complainant about the intra operative findings of zonular weakness and the reason for not implanting the IOL.  After successful cataract surgery, during his discharge on 19.11.2004, he was clinically advised to report for a review on 25.11.2004, however, he did not choose to turn up for the same and, after a span of more than one year, he underwent IOL implantation in Vijaya Hospital and the report of the said Hospital does not contain any adverse notings against the OPs.  Therefore, according to the learned counsel, the present complaint is nothing but a vexatious litigation and the same is liable to be dismissed.  Learned counsel has relied upon a decision of the National Commission reported in I (2007) CPJ 70 (NC) (Vidya Bhushan (Dr.) v. Madan Awadhesh Institute), wherein, it has been held thus,

            “ 10 (a) ………….

(b) …. P.C.Rent was detected, the frequency of which is used to be very high.  I.O.L. was not implanted in the left eye on the complainant in the same sitting.  It is submitted that if during the first surgery I.O.L. could not be implanted owing to any complication it can be done at a later date when the eye becomes ‘quite’ after initial surgery trauma.  That in this particular case also the complainant was advised by Dr.Prasad a secondary implant at a later date or he can use contact lens. … “

According to the learned counsel, in the present case also, the complainant, who is already a fragile man health-wise with various complications, could not be implanted IOL owing to intra operative findings of zonular weakness.  He could have very well turned up for the review as advised by the OP/Hospital and possibly got the lens implanted in the second sitting, but, without doing so, by suppressing material facts, he has come up with the complaint to derive undue benefits, hence, the same is liable to be dismissed at the threshold, he pleaded.

 

             7. Having regard to the rival submissions advanced on either side, the only issue that needs to be decided is, as to whether the OPs committed deficiency of service in performing the surgery under the procedure called phaco- emulsification instead of ECCE, and in not implanting the IOL, as stated by the complainant.

 

             8. It is the case of the complainant that, as per the surgery schedule, after cataract removal under the ECCE Procedure, an IOL implantation would be done, but contrary to such schedule, a different procedure called Phaco-emulsification was adopted and further, implantation of IOL was also not done.  In other words, had the ECCE procedure been adopted, he would not have suffered the complications and underwent another surgery in the other Hospital.  Per contra, learned counsel for the OPs, by referring to paragraph  No.5 of the complaint that runs to the effect ‘in spite of having facility to conduct latest Phaco emulsification procedure, complainant was advised ECCE Procedure because of his eye condition’ and then to para No.8, wherein, it is stated that ‘he (complainant) understood that by mistake and negligence of the 2^nd OP, instead of doing ECCE procedure, he has undergone surgery under different procedure called Phaco emulsifcation’, would submit that thereby, the complainant has contradicted his own statement and it is apparent that he failed to understand  the statement of the OPs in the medical records.

        In between these two ends, on a perusal of the documents, we could notice from Ex.A4/Surgery Schedule, dated 12.11.2004 that the surgery advised was ECCE + IOL.  However, subsequent to the diagnosis done under Ex.B5, dated 17.11.2004, the complainant himself has signed the ‘Informed Consent’ under Ex.B6, dated 18.11.2004, consenting only for PE (Phaco emulsification).   On the face of it, now he cannot turn back and say, instead of ECCE Procedure, the OPs adopted a different procedure called Phaco-emulsification.  Moreover, except making bald allegations, he is not in a position to properly explain by adducing any expert evidence as to how this procedure has caused further complications. As such, we are not inclined to endorse the submissions of the learned counsel for the complainant that the OPs committed deficiency in service, since the complainant himself consented for the procedure under which the surgery was performed.

             Regarding the other grievance of the complainant that he was not implanted the IOL, it is to be pointed out that he was discharged from the OP/Hospital on the very same date ie., on 19.11.2004, without implantation of the IOL, with a medical advice to report for the review on 25.11.2004.  In this regard, it is the case of the OPs that the complainant, who is health-wise a too fragile person with diabetic retinopathy, was not given IOL implantation owing to detection of zonular weakness during the course of surgery, and that, by explaining such condition, he was specifically advised to report for a review on 25.11.2004, however, he did not turn up for the same and, after more than one year, he underwent IOL implantation in Vijaya Hospital and the records of the said Hospital do not suggest any adverse remark about the treatment received by the complainant at the 1^st OP Hospital.  Learned counsel for the OPs also drew our attention to the Medical Journal of the Association of Physicians of India-Vol.65-June 2017 at page No.47 that “sometimes zonular weakness is found unexpectedly as the surgeon begins to do the CCC.  The early signs of potential problems may be subtle. ……… With this gross movement, insertion of capsule tension ring (CTR) will be a little benefit and you should convert to an intra capsular extraction of lens …… during phaco.’  As such, only after noticing zonular weakness, the 2^nd OP withheld the implantation of IOL. Therefore, when the Surgeon/OP2 possessed adequate skill and knowledge to handle the case and also exercised the duty of care in handling the case at all stages, from diagnosis to surgery, at no stretch of imagination, either negligence or deficiency in service can be attributed to the 2^nd OP or the 1^st OP Hospital.  When the complainant was re-explained about his condition and also about the need either for a contact lens or secondary lens implantation at a later date for visual rehabilitation, he was not agreeable for the same and, in fact, on 19.11.2004, he received refund of Rs.6,150/- towards cost of the lens.  According to the learned counsel, thus, he cannot have any grievance at all.  We cannot just ignore or simply brush aside the above submissions of the learned counsel for the OPs, for the reason that the complainant, despite the clear medical advice to come for a review, did not turn up for the same and he has not assigned any reason for not attending the review.  Further, it is not even the case of the complainant that the records of the Hospital where the subsequent surgeries were performed contain any adverse notings or comments about the procedure adopted by the OPs herein.  As such, we are of the opinion that the complainant miserably failed to establish the case of negligence/deficiency in service as against the OPs.

 

        In the result, the complaint is dismissed as devoid of any merit. No costs.

 

R.VENKATESAPERUMAL                                                                                                                 R.SUBBIAH, J.

MEMBER                                                                                                                                                PRESIDENT.

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT.

 

•       Date            Description of Documents

Ex.A1       06.11.2004   Receipt for Lab Testing

Ex.A2       08.11.2004   Receipt for ECG, Physician Examination & Secretarial Charges

Ex.A3       12.11.2004   Receipt for Lab Testing

Ex.A4       12.11.2004   Surgery Schedule

Ex.A5       17.11.2004   Receipt for Advance

Ex.A6       18.11.2004   Discharge Bill

Ex.A7       18.11.2004   Discharge Summary

Ex.A8       19.11.2004   Receipt for final settlement

Ex.A9       20.11.2004   Case Summary

Ex.A10     21.11.2004   Advocate Notice issued by complainant

Ex.A11     25.11.2004   Prescription by Ophthalmologist

Ex.A12     30.11.2014   Reply Notice issued by the OP

Ex.A13     12.02.2005   Discharge & Summary Report issued by the Eye Research Foundation for          the Rt. Eye operation.

Ex.A14     12.01.2006   Discharge & Summary Report issued by the Eye Research Foundation for the Lt. Eye operation.

Ex.A15     25.04.2011   Certificate issued by the Eye Research Foundation.

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE O.Ps.

 

•       Date            Description of Documents

Ex.B1               06.11.2004           IOL Power Calculation Chart

Ex.B2               08.11.2004           Patient History

Ex.B3               08.11.2004           Certificate

Ex.B4                                               Case Sheet and Reports

Ex.B5               17.11.2004           Diagnosis

Ex.B6               18.11.2004           Informed Consent

Ex.B7               18.11.2004           Pre operative Orders

Ex.B8               18.11.2004           Phacoemulsification Technique

Ex.B9                                               Case Sheets

Ex.B10                                            Check List

Ex.B11            18.11.2004           In Patient Discharge Bill

Ex.B12            19.11.2004           Discharge Summary

Ex.B13                                            Certificate issued by the 2^nd OP

Ex.B14            21.11.2004           Legal Notice issued by the Complainant

Ex.B15            30.11.2004           Reply Notice of the OPs

 

 

 

R.VENKATESAPERUMAL                                                                                                               R.SUBBIAH, J.

MEMBER                                                                                                                                              PRESIDENT.

 

 

ISM/TNSCDRC/ORDERS/APRIL/2022.