ADV. RAVI SUSHA, MEMBER.

            Complainant has filed this complaint for getting compensation  alleging medical negligence on the part of the opp.parties.

          The averments in the complaint can be briefly summarized as follows:

          The complainant is a minor girl.  She is represented by her father and natural guardian.   The first opp.party is a Medical Institution and the second opp.party is a qualified Medical Practitioner duly employed by the first opp.party.    The father of the girl is a Mason and the mother is a worker in a local cashew factory.  The complainant minor girl was studying in standard 1 in a local school.     She was very studious, sociable and loving.   She used to burn the midnight oil with her books in her tiny little hands and would go to bed when the parents scold her and ask her to sleep.     While so, towards the end of January 2003 the complainant girl started showing signs of squint in her left eye.     The said squint became obvious and noticeable towards the 2^nd half of March 2003.    On 20.3.2003 the parents of the child took her  to the first opp.party where she was examined by the 2^nd opp.party.   Both the eyes were dilated and a fundoscopy was done.     The same revealed presence of Mild Ternporal pallor.   On 24.3.2003 refraction  was conducted and occlusion of right eye was advised by the 2^nd opp.party for glasses given by 2^nd opp.party is produced   The girl was advised to use a rubber cover over the right eye for at least 4 hours every day and to come for review after six months.   The heart-broken mother of the girl in all her grief asked the 2^nd opp.party the reason for the squint and the latter replied in a sarcastic manner  For the minor girl and her poor family, thesxe one hundred and eight days had turned things upside down as proved by later developments.     It was very difficult and irritating for the girl to wear the rubber eye cover.    It was all the more difficult for the parents to make the child wear it for four hours every day and see that she is unhurt.  Promptly on 23.9.2003 ie. Exactly after six months the girl was taken before the 2^nd opp.party for review as advised.   After examining the girl, the 2^nd opp.party informed the parents that the sight of the left eye is completely lost.     The father of the minor girl was advised by a friend to take her to Aravind Eye Hospital in Tirunelveli.  On 3.10.2003, the doctor there examined the girl and advised for an X-ray.     After seeing the film, the doctor there advised to take a CT scan of the brain.  On 4.10.2003 CT Scan of brain was take and report to the doctor in Aravind Eye Hospital .  After seeking the scan report the doctor in Aravind Eye Hospital referred the complainant to the Neurologist.   The Neurologist advised for an MRI investigation to confirm the findings in the scan report.   After seeing the MRI report the Neurologist told the parents of the complainant that there was an enlarged tumor in the brain and that the girl be taken to S.C.T. Institute for Medical Sciences and Technology, Thiruvananthapuram where probably she will have to undergo a surgery.    The 2^nd opp.party failed to explore the different possibilities for the squint.   She did not even do any investigation to check if her diagnosis was right.  Not even an X-ray was taken, not to speak of CT scan or MRI investigation.   She failed to apply the mandatory course of treatment and also failed to do differential diagnosis of the symptoms presented by the minor girl.    The 2^nd opp.party caused to delay precious one hundred and eighty days which would have brought out remarkable positive changes in the outcome if proper diagnosis was done at the initial stage itself.   She did not deem it necessary to have a second opinion sought in the case.     Thereupon the complainant’s father approached the first opp.party  to give the case sheet of the previous hospital was required.    The hospital authorities were reluctant initially and upon persistent requests, the photocopy of the case sheet was given to the complainant’s father.On 13.10.2003 the complainant was admitted  in Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram .  On 20.10.2003 the girl underwent Left pterional craniotomy and tumor decompression.     Before the operation the doctors in SCT had informed the parents that it was a very complicated surgery since the tumor had become well defined large, and that the girl might lose her eyesight.   The surgery at that stage posed dangers of paralysis and even risk of life according to them.     The operation was conducted and the tumor removed.  But complainant girl had lost her eye sight fully, forever she was discharged from SCT on 4.11.2003 with advice to come for regular follow up.  

In Aravind Eye Hospital, the doctors did differential diagnosis.   They conducted various investigations  The 2^nd opp.party failed to do any of these.  The tumor was detected six months earlier ie. At the initial stage itself when the complainant sought medical assistance to the 2^nd opp.party   but the same could have been removed without having to do any craniotomy.   If appropriate diagnosis was made at the initial stage and the patient referred to a high centre for intervention for removal of tumor, it would have led to cure of the ailment harboured by the minor girl.  The complainant girl  developed various illnesses thereafter and needed many spells of in patient treatment in local hospitals.  The complainant girl had to discontinue her studies,  since she has lost her eyesight completely.    He complainant girl has to be educated in the school for blind children in Thiruvananthapuram.   She will have to be put in a boarding there.  The complainant girl could have lived an independent life if she had sight in at least one eye.   There is deficiency in service on the part of the opp.parties .  Hence the complaint.

          The 1^st opp.party filed  a  version contending interalia that the complaint is not maintainable either in law or on facts.    The complainant Lifina Jose came to the hospital on 20.3.2003 with the complaint of squint in left eye noticed 2 months back.     There was no history of head ache or vomiting or other illness.    On examination it was found that there was left divergent squint of 20-25 degrees.  Pupils of both eyes were reacting normally.  Lens was clear.  Both eyes were dilated and fundus was examined which did not reveal anything except for suspicion mild temporal pallor in both eyes.     The patient was asked to came next day ie. 21.3.2001 for refraction.   She came on 24.3.2003 refraction was done which showed mild hyper metropia and glass was prescribed.   The patient was asked to occlude normal right eye for 2-3 hours a day and to report after one month.  But the patient came on 23.9.03 ie. 6 months later refraction was done which did not show any change and fundus examination also did not reveal anything.     The contention in para 6 the 2^nd opp.party examined her and lboth eyes were dilated and fundoscopy was done and the same revealed presence of mild temporal pallor is false and hence denied. On 24.3.2003 refraction test was conducted which showed mild hypermetrophia. The 2^nd   opp.party did not fail to explore the differenct possibilities of squint.   On examination of the child the findings of the 2^nd opp.party were in favour of Amblyopic which can cause squint in children.      The allegation in para NO.13 are also false and hence denied.   The patient’s father and other men came to the hospital and took the file by force and left the hospital.   The complainant had obtained the copy of the case sheet by unlawful means.  If the complainant had requested for the  case sheet by unlawful means.      The allegation that the ophthalmologist of this opp.party had not suggested various investigations like X-ray, CT scan and MRI Scan etc is not correct.   The reason why such type of tests were not suggested is that there was nothing positive in the findings of the 2^nd opp.party.    The further allegation that the cause of treatment adopted by the 2^nd opp.party was palpably wrong and the same constituted deficiency in service and negligence is not correct and hence denied.   At the time of the first visit occlusion was suggested and the patient was asked for review after one month.  But the patient returned only after six months the patient had not obeyed the instructions of the doctor.  There is no deficiency in service on the part of the opp.parties.  Hence the opp.party prays to dismiss the complaint.

          The 2^nd opp.party filed a separate version contending, interalia, that the complaint is not  maintainable  either in law or on facts. All the allegations leveled against the 2^nd opp.party in the complaint are basically false and unsustainable and hence denied.  The complainant was brought to the 2^nd opp.party at the first opp.party hospital 0n 2.3.2003 with a history of squinting of left eye noticed two months back.     The 2^nd opp.party examined the complain ant in detail and she had no history of headache, vomiting or other illness.       The examination revealed left divergent squint of 20 degree – 25 degree, , pupils were reacting normally and lens was clear.   The second opp.party with due diligence dilated both eyes and fundus was examined which did not reveal anything except for suspicious mild temporal pallor.   The complainant was asked to come on 21.3.2003 for refraction but the complainant came only on 24.3.2003.  The refraction revealed mild hypermetopia, on the basis of physical examination, which was consistent with the unveiled clinical history of squinting with no symptoms of headache, vomiting or other difficulties the 2^nd opp.party had made a provisional diagnosis of Anisometropic amblyopia and glasses were prescribed.     The complainant was asked to occlude normal eye for 2-3 hours a day and report after 1 month for review.   The 2^nd opp.party prescribed treatment on the basis of the diagnosed symptoms revealed on clinical examination and the modality of treatment adopted by the 2^nd opp.party was apt and proper.  In utter disregard to the proper medical advice for review after one month the complainant came only on 23.9.03 and consulted the 2^nd opp.party in the OPD.   The 2^nd opp.party made detailed and thorough examination including refraction and fundus examination, which did not reveal any change in the condition.   The complainant did not present herself for review after one month as per advice.   Even after 5 months there was no marked change in her condition.  The 2^nd opp.party duly informed the parents of the complainant about the need for elaborate investigations including X-ray and scanning etc in order to trace out the real cause of her ailment since fundus examination and refraction were not suggestive of any hint to detect real cause of the squint.   The parents of the complainant were not inclined to the advice for further investigations and seemed to be dissatisfied with the line of management and advice of the 2^nd opp.party.  The parents of the complainant wanted to take her to higher centre for a 2^nd opinion.  The complainant abandoned the treatment accordingly and never turned up again.    The averments in para of the complaint that the 2^nd opp.party is an employee of the first opp.party who is vicariously liable for the deeds of the 2^nd opp.party is ture and correct.     But there was no willful acts or omissions on the part of the 2^nd opp.party at any point of time either in diagnosis or in the treatment of the complainant.  The averments in para 2 of the complaint is false and hence denied.  The averments in para 6 are not fully correct and hence denied.   It is admitted that the 2^nd opp.party had seen the complainant on 20.3.2003 and detailed examination including fundoscopy were conducted.   The allegation that the fundoscopy revealed presence of mild temporal pallor is false.   There was only a suspicious of mild temporal pallor and the complainant was advised to review on the next day itself for refraction test.     But the complainant reported only on 24.3.2003 and hence the allegation that she was advised to come after 4 days is false and hence denied.  The averments in para 7 and 8 of the complaint are false and hence denied.  Further allegation that the 2^nd opp.party gave an explanation to the parents by stating that left eye is lost and it is futile to take her anywhere in the world is falsely and purposely cooked up for undue advantage with least bonafides and hence denied.    The averments in para 9, 10, and11 of the complaint are denied.   The modality of treatment of the complainant at Aravind Eye Hospital is not pertaining to the knowledge of the 2^nd opp.party.   The parents of the complainant were not inclined to the advice of the 2^nd opp.party and opted for the treatment at Aravind Eye Hospital and it was not necessitated by any act or omission on the part of the 2^nd opp.party.  In para 12 of the complaint are false land baseless. Further  the complainant never presented with any symptoms necessitating elaborative investigations including X-ray, CT Scan or MRI investigation at the first instance and on the last review the 2^nd opp.party asked the complainant to have detailed investigation by taking X-ray to explore other possibilities, the parents of the complainant showed an attitude of non inclination and voluntarily abandoned the course of treatment.    There was no impropriety or inadequacy in the service of the 2^nd opp.party.  The averments in para 13 to 18 of the complaint are falsely and purposely made for undue financial advantage and hence  denied.  The averment made in para 19 that the complainant girl developed  various illnesses there after and needed many spells of IP treatment in local  hospital is also false and hence denied.    The averments in para 20 to 23 are highly unfounded and exaggerated without any basis and hence denied..  There is no negligence  or deficiency in service on the part of the 2^nd opp.party.  The 2^nd opp.party prays to dismiss the complaint with their costs.

Points that would arise for consideration are:

1.    Whether there is deficiency in service on the part of the opp.parties

2.    Reliefs and costs.

For the complainant PW.1 is examined.  Ext. P1 to P10 are marked.

For the opp.party DW.1 is examined.   Ext. D1 is marked.

Points 1 and 2

The complainant girl started showing signs of squint in her left eye towards the end of January, 2003.   When the squint become obvious the parents of the complainant took her to 1^st opp.party hospital and she was examined by the 2^nd opp.party. Both the eyes were dilated and a fundoscopy was done which revealed the presence of mild temporal pallor.   The complainant  was advised to come after four days.  On 24.3.2003 refraction test was conducted and occlusion of right eye was advised by the 2^nd opp.party.   The girl was advised to use a rubber cover over the right eye for at least 4 hours every day and advised to come for review after six months.  On 23.9.03 after six months the complainant was taken before the 2^nd opp.party for review, the 2^nd opp.party informed the parents that the sight of the left eye is completely lost.   The complainant’s parents took her to Aravind Eye Hospital in Tirunelveli   The doctor advised for an X-ray.   After seeing the x-ray the doctor advised to take a CT Scan of the brain.   After seeing the scan report the doctor there referred the complainant to the Neurologist.   The Neurologist advised for an MRI investigation and after seeing the MRI report, the Neurologist told the parents that there was an enlarged tumour in the brain.   The complainant was taken to Sree Chithira Tirunal Hospital, Thiruvananthapuram and underwent left ptenonal craniotomy and tumour decompression.  Before the operation the doctors in SCT. informed the parents that since the tumor became well defined, the surgery is a very complicated and the same might lose her eye sight of the other eye also.   After the operation the  complainant had lost her eye sight fully.   According to the complainant if the tumor was deleted six months earlier that is at  the initial stage itself when the complainant sought Medical  assistance to the 2^nd opp.party, the same could have been removed without having to do any craniotomy.  The 2^nd opp.party failed to do investigation like X-ray, CT Scan, MRI Scan etc. after revealing presence of Mild Temporal Pallor.   That amounts to deficiency in services and negligence.

          According  to the 2^nd opp.party there was no negligence or deficiency in service on her part.   At the time of 1^st examination since the patient had no history of head ache, vomiting or other illness.  Provisional diagnosis of Anisometropic Amblyopia was done and glasses were prescribed.   The patient was asked to occlude the normal eye for 2-3 hours a day and report after one month for review.  But the patient came only on 23.9.2003 after six months.  The 2^nd opp.party made  a detailed and thorough examination including Refraction and Fundus examination which did not reveal any change in the condition.  Hence she asked the parent of the patient for elaborate investigations like X-ray scanning etc.  But the parents of the complainant wanted to take the patient to higher centre for 2^nd  opinion and they have abandoned the  treatment of the 2^nd opp.party.  Hence the 2^nd opp.party  would contend that she cannot be held liable for the alleged subsequent diagnosis and treatment.

          Here the question to be decided is whether there is any deficiency in service or negligence on the part of 2^nd opp.party.  It is not in dispute that the complainant was taken to the 2^nd  opp.party on 20.3.2003 when the complainant started the signs of squint on her left eye and on the 2^nd time of consultation ie 24.3.2003 after examination glasses were prescribed and also the patient was advised to occlude the  right eye for 2-3 hours a day.   Dispute is with regard to the period suggested for 2^nd review and  for the treatment given.   According to the 2^nd opp.party since the patient had no symptoms of head ache, vomiting or other difficulties, the examination and treatment given is sufficient.  According to the complainant the 2^nd opp.party failed to explore the different possibilities for the squint.  She did not even do any investigation like taking of X-ray even after revealed presence of Mild Temporal pallor after the Fundoscopy examination.   2^nd opp.party’s contention is that both eyes of the patient were dilated and fundus was examined which did not reveal anything, except for suspicious mild temporal pallor..  On verification of Ext. D1 it is written that fundus examination revealed  the presence of mild temporal pallor.  Here the 2^nd opp.party even after revealing the presence of mild temporal pallor on fundus examination, no further investigation were done like taking of X-ray, CT scan to find out as to whether the Temporal Pallor of the optic disc is the result of nerve compression.  Without doing that the 2^nd opp.party simply  prescribed glasses and asked the patient to occlude the normal eye for 2-3 hours a day which would establish negligence on her side

The next important question to be decided is whether the 2^nd opp. Party advised the patient to come for 2^nd review after one month or after 6 months.   The basic document to find out that question is Ext. D1.  On a perusal of Ext. D1 it can be seen that no such reviewe  date is mentioned in it .  In this case the complainant was taken to the 2^nd opp.party when she started the signs of squint.   There is no dispute that the patient has  any squint by birth.   When the signs of squint started the patient was taken to the doctor for treatment.  Any  prudent doctor would think that without any specific reason this type of sign of  squint would  not have  occurred.  Here on fundoscopy presence of mild temporal pallor was revealed.  When mild ‘temporal pallor was noticed coupled with  on set of squint every prudent doctor would advise detailed examination.  But even after noticing these   the 2^nd opp.party prescribed only glasses and occlusion.  Even  the date of review is not recorded in the case sheet Ext. D1.  According to the complainant the 2^nd opp.party by her negligence caused a delay of precious one hundred and eighty days which would have brought out remarkable positive changes in the outcome if proper diagnosis were  done at the initial stage itself.   From Ext. D1 it can be seen  that  the patient consulted the 2^nd opp.party exactly after 6 months from 24.3.2003 ie. on 23.9.03 from which one can presume that the 2^nd opp.party has suggested to report  after six months for review.   According to the complainant occlusion for six months deteriorated the condition of the complainant since by that time the tumor had become well defined and large.   That contention cannot be ruled out.  If the 2^nd opp.party suggested to report the result of occlusion  after one month and no progress was noted  by on that day further investigation and treatment could have been given to the patient.   2^nd opp.party’s further contention that on 23.9.03  since there was no progress, she advised the complainant for further investigations like X-ray scanning etc.  But in Ext. D1 there is no such entries.  As there is no such entries in Ext. D1, we cannot believe the words of the 2^nd opp.party.  In this case from the whole evidence  we are of the opinion that the patient was not treated with due care an d skill, and therefore  the child has

suffered permanent loss of vision of both the eyes .  Hence there is deficiency in service and negligence on the part of the 2^nd opp.party.   The 1^st opp.party hospital is also vicariously  liable for the negligence of professional men employed by them  under contracts for service as well as under  contracts of service.

          In the result the complainant is allowed.  The opp.parties are directed to pay Rs.10,00,000/- as compensation to the complainant @ Rs.5 lakhs each.   Opp.parties are also directed to pay Rs.5,000/- as cost of this litigation.  The order is to be complied with within one month from the date of receipt of the order.

Dated this the  29^th        day of August, 2009.

                                                                                   .

I N D E X

List of witnesses for the complainant

PW.1. – Jose

List of documents for the complainant

P1. – Patient identification card

P2. – Prescription

P3. – OP Ticket

P4. – X-ray

P5. -  Reference letter by Neurologist

P6. – MRI Scan of Aravind Eye hospital

P7. -   Case sheet of 1^st opp.party hospital

P8. -  Case summary and Discharge card of SCT Hospital Thiruvananthapuram

P9. – Medical certificate.

P10. – Reference letter by 2^nd opp.party.

List of witnesses for the opp.party

DW.1. – Mini Jayachandran

List of documents for the opp.party

D1. -  Case sheet of complainant