BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 20/2012.
THIS THE 23rd DAY OF JULY 2012.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- Rafi Ahmed S/o. Md. Ahmed, aged about 58
years, Occ: Employe in Hutti Goldmines, Residing at 3-4-20, Beroonquilla, Raichur.
//VERSUS//
OPPOSITE PARTIES :- 1. Pujari Eye Clinic, Petla Burz, Raichur.
2. Dr. Sadanand L. Pujari, M.B.B.S, M.S. (Optho) Pujari Eye Clinic Petla Burz, Raichur.
CLAIM : For to direct the opposite No-2 to pay
compensation amount of Rs. 10,00,000/- (Rs. Ten Lakhs) with interest and to grant any other reliefs as deems fit to the circumstances of this case.
Date of institution :- 03-03-12.
Notice served :- 20-03-12.
Date of disposal :- 23-07-12.
Complainant represented by Sri. Vikram Nair, Advocate
Opposite Nos-1 & 2 represented by Sri. D. Suresh, Advocate.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by complainant by name Rafi Ahmed against the opposite No-1 Pujari Eye Clinic, Raichur and opposite No-2 Dr. Sadananda L. Pujari U/sec. 12 of Consumer Protection Act for to direct the opposite No-2 to pay compensation amount of Rs. 10,00,000/- (Rs. Ten Lakhs) with interest and to grant any other reliefs as deems fit to the circumstances of this case.
2. The brief facts of the complainant’s case are that, opposite No-2 running eye clinic under the name and title as Pujari Eye Clinic which is opposite No-1. Complainant admitted in the hospital of opposite No-2 on 04-03-2010 for cataract surgery to his right eye. Operation of cataract was conducted by opposite No-2 without prior operative tests and without his consent and without informing the risk involved in the said surgery. The operation was done by opposite No-2 negligently and due to it, the nucleus (cataract) dropped in the vitreous cavity. Opposite No-2 is no knowledge of lifting it. Hence, complications developed in the right eye thereafter, the said doctor referred him to Medi Vision Eye & Health Care Hospital, Hyderabad. He took treatment in the said hospital at Hyderabad and it was made known to him that the said complications developed due to dropping of nucleus in the vitreous cavity and thereby damage to ratine. Several operations conducted and ultimately, he lost complete vision of right eye. Opposite No-2 doctor not issued medical case sheets to him on demand. He has no proper equipments and staff in his hospital. He has no knowledge of attending the complications arising out of the cataract surgery. Hence, there was deficiency in service on the part of opposite No-2, accordingly, he filed this complaint for the relifs as noted in it.
3. Opposite Nos. 1 & 2 appeared through Advocate, opposite No-1 filed written version and opposite No-1 hospital adopted it, brief facts of their written version are that, his hospital is equipped with new branded equipments and staff. He is qualified and experienced doctor in the said ophthalmology, he conducted more than 15,000/- cataract surgeries successfully, no one have made any complaint against his work till this date.
Dropping of nucleus in the vitreous cavity in the cataract surgery is a common complication and it cannot be stated as it occurred due to lack of care and negligence etc., the extraction of dropped nucleus can be done only at the higher centers. This facility is not available with any eye surgeons at Raichur, at the time of conducting cataract surgery on complainant’s right eye, a piece nucleus dropped into the vitreous cavity, that can be removed by the higher centers only as such, he referred the complainant to Hyderabad Medi Vision Eye & Health Care Hospital, Hyderabad. He got treated and thereafter his vision to right eye completely restored.
He maintained patient’s case history sheets, prior consent was also taken and risk involved in the surgery was explained to him. Now, the complainant has filed this complaint with false allegations and thereby he prayed for to dismiss the complaint among other grounds.
4. In-view of the pleadings of the parties. Now the points that arise for our considerations and determinations are that:
1. Whether the complainant proves that, he admitted in the hospital of opposite No-1 and opposite No-2 being the doctor of opposite No-1 conducted cataract surgery of his right eye on 04-03-2010 on payment of fee of Rs. 5,500/-, but opposite No-2 not issued receipt in that regard, conducted surgery of his right eye without his consent, without informing the risk involved in the operation and without proper equipments and staff. He conducted cataract surgery on his right eye negligently and thereby opposite No-2 was not able to remove dropped nucleus from vitreous cavity and he has not qualified person to do so thereby he referred him to Medi Vision Eye & Health Care Hospital, Hyderabad, wherein operations conducted, but the vision of his right eye completely lost. Opposite No-2 not maintained case sheets of him pertaining to surgery, he not furnished case sheet, discharge summary report in spite of his demand, hence opposites found guilty under deficiency in their services.?
2. Whether complainant is entitled for the reliefs as prayed in his complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In affirmative.
(2) As discussed in the body of this judgment and as noted in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 :-
6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, who is noted as PW-1. The documents Ex.P-1 to Ex.P-8 are marked. On the other hand affidavit-evidence of the opposite No-2 was filed, who is noted as RW-1. Documents Ex.R-1 & Ex.R-2 are marked. Opposite No-1 adopted evidence of RW-1.
7. Now, it is settled principles of law in a case of medical negligence, that the burden of proving medical negligency against doctor it is on the complainant, hence it is necessary for us to refer and appreciate the affidavit-evidence and documents of the complainant in detail.
8. Ex.P-1 produced by him is certificate issued by Eye Specialist by name V.Karishma Munoli of Raichur, wherein it was stated that, right eye of the complainant is of corneal blindness. Ex.P-2 is the referral letter of opposite No-2 dt. 05-05-2010 to Medi Vision Hospital at Hyderabad, wherein he clearly stated that, the complainant was suffering from nucleus drop of his right eye. Ex.P-3 to Ex.P-8 are the admissions of the complainant in Medi Vision Eye & Health Care Hospital, Hyderabad, diagnosis report, discharge summary and medical reports.
9. Documents of the opposites are Ex.R-1 is in-patient sheet dt. 04-03-2010 and Ex.R-2 is the medical literature with regard to cataract operation of eye and risk involved in it the operation.
10. The learned advocate for complainant relied on the following rulings
(1) 2010 CJ 1067 (AP) Dr. CH Raghuram V/s. Kasuladev Anusha & Ors.
(2) 2010 CJ 820 (NC) Niraj Awasthi (Dr) V/s. Jagadish Bharati (deceased) through Lrs.
(3) SC No. FA/08/492 West Bengal (Consumer Forum) P.O. Ramhandrapur PS Santuri V/s. Sri. Rabidranath Pal & Ors.
(4) IV (2011) CPJ 236 NC Jasvinder Singh & Anr V/s. Neeraj Sud Dr. & Anr.
11. In this case, number of allegations made by the complainant to establish the negligence of opposite doctor prior to surgery, at the time of surgery and after surgery. Opposite No-2 doctor categorically denied all the allegations made against of him by the complainant, in view of the fact, it is necessary for us to discuss of those allegations one by one to see as to whether complainant has discharged his burden in proving the said allegations.
12. The first point for our consideration is as to whether opposite doctor taken consent of complainant prior to cataract surgery on his right eye and also he explained the risk factors involved in the said surgery. The opposite doctor denied these allegations and contended that, prior consent of complainant was taken and risk factor involved in the said operation was informed to him. Para-4 of the written version of the opposite doctor is very clear in this regard.
13. The specific case of the complainant is that, opposite doctor not took is prior consent and not informed the risk factors involved in the said surgery, but he cannot produce any documentary evidences in support of it. However opposite doctor filed one document Ex.R-1 said to be the in-patient case sheet of complainant said to have maintained in his clinic. HenceNow, we have to appreciate Ex.R-1 “In-patient Case sheet” as to whether opposite doctor took prior consent of complainant and informed the risk factor involved in the said surgery. Before appreciation of document Ex.R-1 and the rulings referred by the learned advocate for complainant, it is proper to understand the difference between consent and free consent of the patient. Section 33 of the Indian Medical Council Act of 1956 deals with regard to disciplinary action, which enumerates the list of responsibility of the doctor, violation of such responsibility and professional of mis-conduct.
14. We are more particular about clause 13 of the said chapter which places the following responsibilities of the doctor before performing surgery.
15. As per clause 13 of the said Act, it is incumbent on the part of the doctor to obtain consent in writing from the patient. The word consent should be a real consent, their lordships of the Hon’ble Supreme Court in Samira Kohli V/s. Dr. Prabhamanchandra AIR 2008 SC 1385 and in another case Nizam Institute of Medical Science V/s. Prashant S. Chananka I (2009) SC 4165 clearly explained the meaning of real consent in comparison with the meaning of consent in England Laws. So Ex.R-1 printed report filled with hand written particulars, but the consent portion in it is kept blank. That means the signature of the complainant not obtained to it. The learned advocate for opposite made us to believe Ex.R-1 is the extracted copy because, original document, was seized by the police in criminal case. This explanation offered by the learned advocate for opposite is not acceptable for the reasons that, this document has no certification or an endorsement to show that, it is a copy prepared from original in patient case sheet. Secondly we are not accepting said submissions on the ground that, who has issued this document and on what basis the particulars are written in it. No one can understand that Ex.R-1 is a document prepared from original register or records. On perusal of this document, we can say that it was not prepared on 04-03-2010 or on 05-03-2010, therefore police have seized the original documents. Hence this document cannot be document prepared either as a copy of original or certified coy of original as such, we are of the view that, Ex.R-1 is prepared after thought at later stage only to over come all the allegations of the complainant, hence, we are of the view that, Ex.R-1 is not helpful for opposite to show that, he took prior consent that too real consent of the complainant in writing. Further, it is not helpful for the opposite to establish the fact that he informed the percentage of the risk involved in the said surgery. As such, we are of the clear view that, document Ex.R-1 itself show that, opposite doctor not took real consent of the complainant and not informed the risk involved in the surgery. This view is also supported by the principles of the judgment of Hon’ble Supreme Court in Jacob Mathews V/s. State of Punjab and another 2005 CPJ (9) SC. and Bolam Rule in England (4) (2011) CPJ 236 (NC).
16. Another material contention required to be decided by us in this case is whether complainant is a consumer and he can file a Consumer Complaint of this nature, the learned advocate for complainant submitted before the court that complainant paid to opposite No-2 an amount of Rs. 5,500/- towards fees of the surgery but opposite not only issued receipt regarding the receipt of the said fees, also he refused to issue on demand.
17. The learned advocate for opposites submitted before us that, complainant not produced any single paper to show that, he paid fee for surgery. Hence, complainant is not a consumer as defined under the Consumer Protection act and this complaint is not maintainable before Consumer Forum.
18. In pursuance of the submissions made on both sides, it is necessary for us to go through Sub-para-4, Para-5, 7, & 9 of the written version filed by opposite No-2.
19. In Para-5 of the written version, he stated that, his clinic is fully equipped with proper equipments and staff and all the instruments are new branded instruments. Keeping in view of these facts, we have referred the facts stated by opposite No-2 doctor, in Para-7 of his written version, wherein his contended that, he is qualified doctor in ophthalmology, he conducted more than 15000/- cataract surgeries on different persons at various occasions successfully and till this date, no complaints received by any one.
20. On going through this fact as pleaded by doctor-himself, he is running his clinic under the name and style by Pujari Eye Clinic at Raichur. In view of his fact, it is clear that, his hospital is not a charitable hospital. No where he claimed that, he conducted 15,000/- cataract surgeries on free of cost. He also not pleaded with regard to conducting of cataract surgeries on the right eye of complainant on free of cost. In the said circumstances, we are unable to accept the submissions made by the learned advocate for opposite doctor that, the said surgery conducted by him on the right eye of the complainant on free of cost. But it was done on the payment of fee of Rs. 5,500/-. No exaggeration is coming from mouth of the complainant in this regard, accordingly we have accepted the contention of the complainant that, he paid Rs. 5,500/- to opposite No-2 and availed service of opposite No-2 for cataract surgeries to his right eye. Non-issuance of receipt for the fee charged by opposite No-2 and refusal to issue the receipt on demand by the complainant is also a negligence on the part of opposite No-2, hence, we came to a conclusion that, opposite No-2 committed deficiency in his service by non-issuing receipt for consideration amount of Rs. 5,500/- till this date.
21. Third point for our consideration is whether opposite No-1 hospital was equipped with proper instruments for conducting cataract surgery by opposite No-2. Complainant made several allegations by contending that, the said hospital is not properly equipped with necessary instruments. Opposite No-2 doctor denied all the said allegations.
22. In this case at the time of conducting surgery on the right eye of the complainant, nucleus dropped in the vitreous cavity, doctor who was cnducting operation was not able to remove dropped nucleus in vitreous cavity. No doubt percentage of this kind of risk is in minimum rate, however, it is the duty of the operating doctor to meet out the eventuality at the time of conducting operation even though casualties might be less in percentage. It is clear cut case of doctor that, his hospital was not equipped with facilities of extracting dropped nucleus, it can be done only in the higher centers, this facility is not available in his hospital and also in other hospitals of eye surgeons at Raichur, as such, he referred the complainant to higher centers at Hyderabad, where dropped nucleus was extracted.
23. These admitted facts are sufficient for us to say that, opposite No-1 eye clinic in Raichur was not equipped with proper equipments to extract dropped nucleus and opposite No-2 doctor is not capable of dropped nucleus. Hence, we also found the deficiency in service of opposite No-2 because of non proper equipments in his hospital and he not capable to meet out any casualties arising at the time of surgery as happened in this case.
24. Fourth ground that was pointed out before us is that, opposite No-2 doctor has not at all maintaining case sheets of the patient in general and complainant case sheet in particular and the copy of the case sheet was not furnished to the complainant on his demand.
25. The learned advocate for opposite denied this allegation by placing reliance on Ex.R-1, we have meticulously examined the document Ex.R-1 said to be “In patient case sheet” of the complaisant and we have discussed the genuineness of the said document in earlier paras with reasons, we have categorically stated that, Ex.R-1 is a document prepared by opposite No-2 doctor after thought only to over come this case. If, really Ex.R-1 is the copy of the original document, then what was the obstruction to him to get xerox copy or certified copy of Ex.R-1 either from the police or from the criminal court, no explanation is out coming in that regard aprt from it, Ex.R-1 itself not discloses the fact that, it was prepared and signed by this opposite No-2 on what date and for what purpose. It appears from Ex.R-1 that it is not a copy of original document if really he maintained in the hospital. Hence, this Ex.R-1 is not safe to document to place on it to reliance to hold that it is a copy of “In patient case sheet” of complainant and more over there is no any endorsement on Ex.R-1 that, the copy of it was served on complainant at the time of discharge, no signature of the complainant is coming on it for having received by him. In view of these reasons, we came to a conclusion that opposite doctor has committed deficiency in his service for non maintaining and non furnishing the case sheets and medical records and discharge summary to the complainant on demand.
26. Much more was argued with regard to the mode of surgery conducted by opposite No-2, it is not in dispute that the procedure adopted is a standard line of treatment for conducting cataract surgery, Ex.R-2 literature discloses the details of the above procedure with risk involved in that aspect as complainant also not challenged the line of treatment by opposite No-2, however they are challenging the surgery on the ground that, opposite No-2 was not capable to meet out the eventuality occurred at the time of surgery as he is not capable of extracting the dropped nucleus in vitreous cavity even though it might be less percentage of risk involved for that reason, he referred the complainant to Hyderabad to higher hospital vide his letter Ex..P-2. In view of his incapability complainant was required to travel all along from Raichur to Hyderabad in that precarious condition, apart from it case sheet and discharge summary reports of Medi Vision Hospital, Hyderabad. Ex.P-3 to Ex.P-8 clearly discloses that, the ratina was damaged. In such circumstances, that complainant completely lost of his vision in right eye in spite of serious efforts made by the doctors of Medi Vision Hospital of Hyderabad, so the opposite No-2 doctor is responsible for such loss of vision of right eye of the complainant, hence, we rejected the contention of opposite in this regard and we noticed another deficiency in service on the part of opposite No-2 in this case.
27. The learned advocate for opposite contended that, the vision of the right eye of the complainant was not completely lost, the medical reports Ex.P-3 to Ex.P-8 discloses the said fact. We have gone through the entire medical reports Ex.P-4 to Ex.P-8 and also the report of doctor B. Karishma Munoli Ex.P-1, we are of the opinion that, there is no merit in the say of opposite No-2 that, the vision of the right eye of the complainant was restored. The right eye of the complainant has become completely blind, there are no chances of recovery of vision to his right eye, hence we are of the view that, the doctor opposite No-2 committed several negligency in conducting operation of surgery to the right eye of the complainant, including non conducting prior clinical tests prior to surgery. Hence we answered Point No-1 in affirmative.
POINT NO.2:-
28. As regard to the relifs are concerned, complainant lost his complete vision to his right eye, this is because of direct result of negligence of opposite No-2. This negligence of opposite No-2 is constituted in various types as discussed above, we are of the view that, he is entitled to get global compensation of Rs. 3,00,000/- from opposite Nos. 1 & 2, accordingly we have granted an amount of Rs. 3,00,000/- to the complainant as a compensation amount which is recoverable by opposite Nos. 1 & 2 jointly and severally.
A lumpsum amount of Rs. 3,000/- is awarded to the complainant towards deficiency in service by opposites and an amount of Rs. 2,000/- is granted to the complainant towards cost of this litigation.
Complainant is entitled to get 9% p.a. interest on the total sum of Rs. 3,05,000/- from the date of this complaint till realization of the full amount., accordingly we answered Point No-2.
POINT NO.3:-
29. In view of the findings on Point Nos. 1 & 2 , we proceed to pass the following order.
ORDER
The complaint filed by the complainant is partly allowed with cost.
Complainant is entitled to recover total amount of Rs. 3,05,000/- from opposite Nos. 1 & 2 jointly and severally.
Complainant is also entitled to recover interest at the rate of 9% p.a. on Rs. 3,05,000/- from the date of this complaint till realization of the full amount.
Opposite is hereby granted one month time to make the said payment to the complainant from the date of this judgment.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 23-07-12)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur. District Consumer Forum Raichur.
