KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

CC  NO.03/2008

JUDGMENT DATED:25.08.2014

PRESENT : 

JUSTICE SHRI. P.Q. BARKATHALI                        :  PRESIDENT

SHRI. V.V. JOSE                                                         : MEMBER

R. Vipina Chandran,

Manimangalam,

Chamavila, Melethumele,

Manikanteswaram. P.O,                                                    : COMPLAINANT

Vattiyoorkavu,

Thiruvananthapuram.

(By Adv: Sri.Kamaleswaram S. Manikantan Nair)

            Vs.

1. Sree Chithira Thirunal Institute of Medical Sciences,

Thiruvananthapuram.

Repd. By its Director.

1. Dr. Guptha,

Sree Chithira Thirunal Institute of Medical Sciences,

Thiruvananthapuram.

                                                                                                : OPPOSITE PARTIES

1. Dr. Moorthy,

Sree Chithira Thirunal Institute of Medical Sciences,

Thiruvananthapuram.

(By Adv: Sri. P.Balakrishnan)

  JUDGMENT

JUSTICE SHRI.P.Q. BARKATH ALI : PRESIDENT

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act claiming a compensation of Rs.25 lakhs alleging medical negligence against the opposite parties.

2.      The case of the complainant as detailed in the complaint in brief is this:-

The complainant was working as a driver in a Company at Riyadh in Saudi Arabia.  He consulted a doctor at Riyadh as his eye sight became dim who advised him for a surgery.  Thereafter he became to Kerala and consulted Dr.Sahasranamam of the Government Ophthalmic Hospital, Thiruvananthapuram who advised him for a scan.  Thereafter he was referred to first opposite party hospital, Sree Chithira Thirumal Institute of Medical Sciences and Technology, Thiruvananthapuram for further treatment.  Dr. A.K. Guptha, the second opposite party and  Dr.Moorthi, third opposite party who are the doctors of first opposite party advised him for an urgent surgery.  They promised him that he would regain 80% of the eye sight after surgery.  The expense would come to Rs.2,50,000/-.  He sold his house and 3 cents of land and obtained some amount.  He receive Rs.30,000/- from Prime Minister’s Relief Fund and Rs.5000/- from Chief Minister’s Relief Fund.  He was able to mobilize only Rs.1,45,000/- but after surgery he became 100% blind.  Opposite parties referred him to Aravind Eye Hospital, Madurai who told the complainant that as the opposite parties have placed a coil inside the head of the petitioner further treatment is not possible.  The complainant lost his eye sight only due to the negligence on the part of the opposite parties.  He claimed a compensation of Rs.25 lakhs and the cost of the proceedings.  Opposite parties 1 to 3 in their version contended thus:-

3.      Complainant cannot be treated as a consumer as provided under section 2 of the consumer Protection Act.  Complainant was referred to Regional Institute of Ophthalmology, Trivandrum with complaints of defective visions both sides, Papilloedema both sides and pale disc both sides.  On September 23, 2004 CT examination revealed, extensive Arterio Venous Malformation was made.  He was referred to Neuro Radiology Out patient Department on September 27, 2004 and he was advised for angiogram to confirm the diagnosis.  He was found to have Dural Arterio Venous Fistula.   He was advised to go for coiling.  On 4.10.2004 he was explained about the procedure regarding the coiling of the side of fistula and about the probable expenditure.  He was advised to come back after arranging funds.  He was informed that recovery of vision is remote but any chance in vision recovery is after closing the fistula only.  As he had papilloedema there was risk of going into Optic Atrophy, in that case he cannot regain vision.  He was admitted on October 11, 2004 and his visual accuracy was poor and finger counting only from the distance of 50 Cms. On October 13, 2004 angiogram was taken and was found to have a high flow dural arterio venous fistula at right sigmoid sinus with retrograde venous reflix in superior sagittal sinus.  Definite procedure with coil occlusion of right sigmoid sinus was done on 10.10.2004 through the venous route.  Post procedure of angiogram showed complete closure of fistula.  Before the procedure consent was obtained after explaining the risk involved the procedure from the patient’s.  Even without the closure of fistula his vision deteriorated in long term.  He was discharged on October 30, 2004 and was advised to go Aravind Eye Hospital to evaluate ophthalmic status.  There was no negligence on the part of the opposite parties.  Therefore complaint has to be dismissed.

4.      PWs 1 and 2 were examined and Exts.A1 to A24 were marked on the side of the complainant.  Opposite parties examined DW1s 1 to 3 and produced Exts.B1 to B3.

5.      The following points arise for consideration:-

1. Whether there was any negligence or deficiency of service on the part of the opposite parties in conducting surgery on the complainant?
2. If so what is the quantum of compensation complainant is entitled to?

6.      The case of the complainant as testified by him as PW1 is that while he was employed in gulf his eye sight became dim, that opposite parties 2 and 3 who are the doctors of the first opposite party hospital advised for an urgent surgery on the promise that he shall regain 80% of his vision that they told him that the expense of that surgery would be Rs.2,50,000/-, PW1 sold his house and obtained Rs.30,000/- from Prime Minister’s Relief Fund, Rs.5000/- from Chief Minister’s Relief Fund and manage to mobilize Rs.1,45,000/- and that after the surgery he lost his entire eye sight.  He would say that it was due to negligence on the part of opposite parties 2 and 3 he lost his eye sight.  He claimed a compensation of Rs.25.lakhs. 

7.      DW1, the second opposite party testified thus:- Complainant was referred from Regional Institute of Ophthalmology, Thiruvananthapuram.   At the time of reference he was having impaired vision to both eyes.  He was diagnosed to have Extensive Arterio  Venus mal formation.  On taking angiogram he was found to have dural arterio venus fistula.  Surgery was not possible in the case therefore coiling was done to close the fistula.  It was explained to the complainant that it was only chance for recovery of vision and that he may or may not have regain vision.  He did not give any guarantee for recovery of vision.  Because of the fistula there will be high pressure inside the brain and by closing the fistula the pressure will be reduced and will come to normal.  If the fistula is not closed there is a chance for cerebral haemorrhage.  Complainant had optical atrophy.  Even when the complainant came to the opposite parties he has lost his vision to 90 to 95%.

8.      When cross-examined he admitted that complainant has optical atrophy when he came to the hospital of the opposite party and that  it was after obtaining the opinion of the Ophthalmologist coiling was done. It was suggested during cross-examination of DW1 that as the complainant was suffering from optic atrophy.  Coiling procedure was done unnecessarily which is denied by DW1.

9.      Thus the main question for consideration is whether the coiling procedure done on PW1 was highly essential and whether opposite parties 2 and 3 conducted the coiling procedure on PW1 promising that he would regain his lost vision.

10.    Complainant produced Exts.P1 to P24.  Ext.P1 is his driving license.  Ext.P2 is his passport.  Ext.P2(a) is his work permit.  Ext.P3(a) is his plane tickets.  Exts.P1 to P3 would show that complainant was working abroad as a driver.  Ext.P4 is the copy of the OP ticket of Dr.Sahasranamam of Government Ophthalmic Hospital, Trivandrum.  Ext.P5 is the scan bill dated:22.09.2004.  Ext.P6 is the letter from Assistant Professor of Radiology, Sree Chithira Thirunal Hospital to Ophthalmologist to evaluate the visual status of the complainant.  Ext.P7 is the copy of sale deed No.4238/2004, dated:06/12/2004 which shows that complainant has sold his house for raising the money for his surgery.  Ext.P8 is the instruction given from Priminister’s office to the Director of Sree Chithira Thirunal Hospital, Trivandrum regarding release of Rs.30,000/-  to the complainant, dated:20.12.2004.  Ext.P9 is the letter dated:30.12.2005 of Secretary of Labour and Rehabilitation Department to the wife of the complainant intimating that the petition for employment is forwarded to Sree Chithira Thirunal Hospital, Trivandrum.  Ext.P10 is the discharge summary issued from Sree Chithira Thirunal Hospital.  Ext.P11 is the copy of the referral letter to Ophthalmologist, Aravind Eye Hospital, Madhurai, dated:22.11.2004.  Ext.P12 and P13 are the reply for PW2 to the effect that no eye surgery is possible to the complainant.  Ext.P14 is the copy of the letter from Aravind Eye Hospital to District Rehabilitation officer, Trivandrum dated:26.11.2004 to render specialized services of visually impaired to the complainant.  Ext.P15 is the medical report issued by PW2.   Ext.P16 is the disability certificate issued from Medical Board of Medical College Hospital, Trivandrum to the effect that complainant has 90% disability.  Ext.P17 is the disability certificate issued by the Medical Board of General Hospital, Trivandrum to the same effect.  Ext.P18 series are bills worth Rs.1,12,502/-.  Ext.P19 is the copy of notice issued by the complainant to opposite parties.  Ext.P20 series are postal receipts.  Exts.P21 to P24 is postal acknowledgements.

11.    Complainant relied mainly on the evidence of PW2, Dr.Mahesh Kumar, consultant Ophthalmologist, Aravind Eye Hospital, Madurai.  It was also contended by the complainant that without properly assessing the damage caused on optic nerve coiling procedure was done by the opposite parties.

12.    PW2 has categorically stated that if the optic nerve is damaged beyond recovery due to intracranial pressure no purpose will be served by the coiling procedure.  He further stated that damage caused to optic nerve has to be assessed before conducting coiling procedure which opposite parties 1 and 2 did not do.  Opposite parties 2 and 3 admit that they did not assess the extend of damage caused to optic nerves.  PW2 has also stated that there is possibility of further deteriorating vision on account of incorrect coiling.

13.    It is clear from the evidence of PW2 that even at the time when the complainant came for treatment to the first opposite party hospital he had optical atrophy and that coiling procedure was done unnecessarily.  PW1 categorically stated opposite parties 2 and 3 promised him that he will regain 80% of the vision on conducting coiling procedure.  Thus there is clear negligence and deficiency of service on the part of the opposite parties 2 and 3, doctors.  The first opposite party is also vicariously liable.

14.    The next question for consideration is what is the quantum of compensation the complainant is entitled to?  The complainant was working as a driver in Gulf countries.  Now he has lost his vision.  There is another aspect in this matter.  Complainant has optical atrophy and he will loose vision in any event.  The coiling procedure done by the opposite parties 2 and 3 has deteriorated his vision.

15.    Complainant claimed Rs.5,00,000/- for the medicines and hospital bills.  Rs.1,00,000/- for travelling expenses, Rs.5,00,000/- for mental agony, Rs.4,00,000/- for pain and sufferings and Rs.10,00,000/- for the disability totaling to Rs.25,00,000/-.  Taking into account all these aspects as discussed above we feel that a compensation of Rs.10,00,000/- would be reasonable.  Complainant is entitled to interest at the rate of 9% per annum from the date of petition till realization.  He is also entitled to a cost of Rs.10,000/- .

In the result complaint is allowed in part.  Opposite parties 1 to 3 are directed to pay Rs.10,00,000/- as compensation to the complainant and also Rs.10,000/- as cost within one month from this day with interest at the rate of 9% from the date of petition till realization.

JUSTICE P.Q. BARKATHALI      :  PRESIDENT

V.V. JOSE : MEMBER

VL.

APPENDIX

COMPLAINANT’S EXHIBITS

Ext.P1        : Work Permit

Ext.P2        :  Passport

Ext.P3        : Air tickets.

Ext.P3(a)   :   -do-

Ext.P4        : OP ticket

Ext.P5        : Scan bill No.7989 dt:22.09.2004

Ext.P6        : Scan result

Ext.P7        : Certified copy of sale deed No.4238/2004

Ext.P8        : Letter dt:20.12.2004 issued from the office of the Hon’ble Prime Minister of India.

Ext.P9        : Lr. Dtd:30.12.2005 issued by the Government of Kerala.

Ext.P10      : Discharge summary of SCTIMST and medical certificate dt:30.10.2004.

Ext.P11      : Lr. Dtd:22.11.2004 issued by Sree Chithra Thirunal Institute of Medical Sciences & Technology, TVPM.

Ext.P12      Ltr. from Aravind Eye Hospital, Madurai addressed to P.Krishna Moorthy Pillai, Department of Medical Records, SCTIMST, TVPM.

Ext.P13      : Ltr. from Aravind Eye Hospital, Madurai addressed to Dr.A.K.Gupta, SCTIMST, TVPM.

Ext.P14      :  Ltr. from Aravind Eye Hospital, Madurai addressed to District Rehabilitation Officer, TVPM dt:26.11.2004.

Ext.P15      : Medical report dt:1.3.2008 of Aravind Eye Hospital Madurai.

Ext.P16      : Disability certificate issued by Medical College Hospital, TVPM No.2942/2006 dt:19.9.2006.

Ext.P17      : Disability Assessment Board Certificate No.5259 dt:18.8.2006.

Ext.P18      : Medical bills (11 numbers) amounting to Rs.1,12,502.30.

Ext.P19      : Legal notice to all the counter petitioners and also to the Secretary, Ministry of Health, Govt. of India, New Delhi on 16.10.2007 by Registered post.

Ext.P20      : Postal receipts.

Ext.P21      : Signed postal acknowledgement of legal notice sent to the 1^st counter petitioner.

Ext.P22      : Signed postal acknowledgement of legal notice sent to Secretary of Ministry of Health, Govt. of India, New Delhi.

Ext.P23      : Refused legal notice by 2^nd counter petitioner in original.

Ext.P24      : Refused legal notice by 3^nd counter petitioner in original.

COMPLAINANT’S WITNESS

PW1           : Vipina Chandran

PW2           : Dr. Mahesh Kumar

OPPOSITE PARTY’S EXHIBITS

Ext.B1        : Case sheet of the patient

Ext.B2        : Standard Text Book of Interventional Radiology written by J.J.Connors and Joan C.Wojak. (page No.209 to 217)

Ext.B3        : Neuroradiology 1997:39:59-66

OPPOSITE PARTY’S WITNESS

DW1           : Dr.A.K.Gupta

DW2           : Dr.V. Sahasranamam

EW3           : Dr.M.K.Mishra

JUSTICE P.Q.BARKATH ALI:  PRESIDENT

V.V. JOSE : MEMBER

VL.