BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD

F.A.No.444  OF 2012 AGAINST C.C.NO. 136 OF 2012 DISTRICT FORUM-II AT VIJAYAWADA KRISHNA DISTRICT  

Between:

1.   Dr.Rajendra Prasad
Dr.Pinnamaneni Sidhartha Institute of Medical
Sciences & Research Foundation, Chinaoutuppali
Gannavaram Mandal, Krishna District

2.   The Superintendent
Dr.Pinnamaneni Sidhartha Institute of Medical
Sciences & Research Foundation, Chinaoutupalli
Gannavaram Mandalam, Krishna District

                                                                        Appellants/opposite parties No.1 and 3

                A N D

1.   Tammisetti Venkata Narayana
S/o Venkateswarlu, Occ: Cooli
R/o Khaja Nagar, Ibrahimpatnam
(Post & Mandal) Krishna District

                                                                        Respondent/complainant

2.   Dr.P.Ravi Kiran, M.S.
Dr.Pinnamaneni Siddhartha Institute of
Meedical Sciences & Research Foundation
Chinaoutupalli, Village, Gannavaram
Mandal, Krishna District
(complaint against OP2 is dismissed)

Respondent/opposite party no.2

Counsel for the Appellants             M/s  Challa Gunaranjan

Counsel for the Respondent           M/s   B.Devadasu

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE I/C PRESIDENT

                        SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

& 

 SRI S.BHUJANGA RAO, HON’BLE MEMBER

                        WEDNESDAY THE FOURTH DAY OF DECEMBER

                                   TWO THOUSAND THIRTEEN

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble I/c President)

                                        ***

1.             The opposite party is the appellant. The respondent filed complaint claiming a sum of `5,00,000/- towards compensation from the appellant and the respondents no. 2 and 3 on the premise of negligence in administering treatment and causing  loss of vision in his right eye.

2.             The case of the first respondent as seen from the averments of the complaint is that he consulted the appellant on 9.09.2008 with regard to treatment for the problem in his right eye and they advised him to undergo cataract surgery which was conducted upon him on 10.09.2008.  The first respondent submitted that after conducting operation, the second respondent and the appellant did not visit him and they had not taken proper care during the post-operative stage and they discharged him from the respondent no.3 hospital on 11.09.2008 without bothering about the watering in the eye  and pain suffered by him.

3.             The first respondent submitted that he approached the appellant and the respondent nos. 2 and 3 on 13.09.2008 and complained of the problem and they referred him to Dr.G.Sudheer of Pradeen Eye Hospital, Machavaram who examined him and opined that the first respondent lost vision in his right eye due to the surgery he had undergone and the first respondent again consulted the appellant and the respondents no. 2 and 3 and they referred him to L.V.Prasad Eye Hospital which could not be approached  due to financial crisis of the first respondent.

4.             The first respondent submitted that he consulted Dr.Ravella Rajakumar, Vijayawada and  Dr.G.Sambasiva Rao, Nandigama and they opined that he lost vision in his right eye due to negligent treatment and surgery performed by the appellant and the respondents no.2 .

5.             The appellant and the respondents no.2 and 3 resisted the claim by filing common written version and contended that the first respondent complained of diminish vision in his both eyes and on examination, the appellant found cataract in his both eyes and advised for cataract of his right eye.  The appellant admitted the first respondent in ophthalmology ward of the respondent no.3-hospital under free category under District Blindness Control Society  and conducted preoperative investigations.  The appellant conducted cataract surgery upon the first respondent on 10..09.2008 and after exercising due care during post-operative stage discharged the first respondent from the hospital on 11.09.2008. He did not complain any problem at the time of discharge and eye drops was furnished to him free of cost.

6.             The appellant submitted that he had issued instructions to the first respondent to be followed during the post-operative stage and he approached the second respondent complaining severe pain in his right eye, redness and watering in the operated eye. The second respondent advised for admission of the first respondent and during his stay in the hospital, the respondent no.1, the Head of the Department of Ophthalmology and the appellant examined him and provided him with medicine free of cost.  He submitted that they administered frequent eye drops to the first respondent and the duty nurse followed their instructions in attending on the first respondent.

7.             The appellant submitted that they discharged the first respondent from the hospital on 13.09.2008 with an advice to get opinion of Vitro Retinal Surgeon to rule out possibility of post-operative infection and referred him to Dr.G.Sudheer of Pradeena Eye Hospital who examined him and opined that there was no post-operative inflammation or infection and there was corneal haze and he advised to find out the cause for corneal haze. The first respondent did not turn up to the respondent no.3-hosptial till 01.10.2008 on which day he was examined as outpatient and found to be relieved of pain, however with continued blurring of vision.

8.             The appellant referred the first respondent to L.V.Prasad Eye Hospital, Hyderabad for further investigation. The first respondent had not shown the findings of Dr.Sudheer to the appellant and he consulted Dr.Ravella Raj Kumar on 22.09.2008 and Dr.Sambasiva Rao of Nandigama in the month of March,2009 which would show the first respondent’s negligence. The first respondent would not have consulted the appellant and the respondents no.2 and 3 on 01.10.2008 had been told that he lost vision in his right eye on account of negligent treatment administered to him at the respondent no.3-hospital. The appellant had taken utmost care in treating the first respondent.

9.             The first respondent filed his affidavit and the documents, Exs.A1 to A15.  On behalf of the appellants and the respondent no.2, the appellant no.1 filed his affidavit and the documents, Exs.B1 to B8.

10.            The District Forum allowed the complaint on the premise that the damage to cornea in the right eye of the first respondent was caused due to surgical trauma and it occurred at the time of cataract extraction done by the appellant. The District Forum held the respondent no,2 not negligent on the basis of the statement of the appellant that the second respondent was not involved in the entire course  of treatment.

11.            Aggrieved by the order of the District Forum, the first opposite party has filed appeal contending that there is no relationship of consumer and service provider between the first respondent and him and that he conducted surgery free of cost. It is contended that the charges paid to the appellant by the Government are for reimbursing the expenses and not any profit and that the first respondent had not filed Memorandum of Understanding entered into between the Government.

12.            It is contended that the appellant and the District Forum without looking into the terms of MoU came to conclusion on assumptions that the first respondent is a beneficiary under the contract. The District Forum failed to see that the appellant had continuously attended on the first respondent and there was no negligence on his part and it failed to appreciate the evidence adduced by the appellant.

13.            The learned counsel for the first respondent has filed written arguments.

14.            The points for consideration are:

i)             Whether the first respondent is a consumer to invoke the jurisdiction of Consumer Forum?

ii)           Whether there is deficiency in service on the part of the appellant and the respondent no.3 in rendering treatment to the first respondent?

iii)          To what relief?

14.            POINT NO.1:      The appellant raised objection as to maintainability of complaint on the ground that the first respondent had not paid any consideration for his treatment and the medicine purchased by him does not form part of the consideration.  The learned counsel for the appellant has contended that the District Forum without considering that no MoU is filed before it proceeded to hold payment of charges by the Government would take the first respondent to the status of beneficiary.

15.            The learned counsel for the appellant has contended that the first respondent had not filed copy of MoU and the District Forum without looking into the terms of the MoU, came to the conclusion that the first respondent is a beneficiary of the scheme where the Central Government has borne surgical expenses. A perusal of the order would show that the District Forum has considered the terms of the MoU   though the document was not marked Exhibit. As such it cannot be said that the first respondent has not filed copy of MoU and the District Forum had not considered the terms of the MoU. In paragraph 21 of the Order, the District Forum has dealt with how the first respondent can be considered as beneficiary of the scheme which reads as follows:

21. The opposite parties had taken a plea that the service was rendered on free  of cost and therefore the complaint is not maintainable under C.P. Act. In this connection the opposite parties had stated in the counter that the cataract was done under free category under District Blindness Control Society under the National Programme for Control of Blindness and the complainant’s right eye was operated by the 1st opposite party for cataract as free case. The 1st opposite party must be a paid surgeon under the 3rd opposite party. DW-1 admitted through cross examination that the central government would reimburse its surgical expenditure to each patient to the institution of the doctor i.e., to the 3rd opposite party. Though the opposite parties did not mark, they filed a copy of memorandum of understanding between the government and the 3rd opposite party which includes a term of agreement that the  government would sanction cost of free cataract operation etc., performed by the NGO private practitioner as per the government of India guidelines and there is another term stating that the government would make payment of sanctioned amount to the NGO private practitioner on monthly or quarterly basis. The 3rd opposite party is NGO private practitioner under the MOU. Therefore this is not a case where surgery was done to the complainant free of charges. The charges were paid by the government and the complainant is the beneficiary under a contract known as memorandum of understanding. Therefore this complaint is maintainable.

16.            The Government in terms of the MoU paid the amount to the appellant for each cataract operation he performed.  The appellant failed to prove his contention and in the circumstances it cannot be held that the District Forum had gone wrong in holding that the first respondent is the beneficiary in view of the expenditure for the surgery borne by the Central Government. The point is answered against the appellant.

17.            POINT NO.2:              The appellant had performed cataract surgery upon the right eye of the first respondent at the respondent no.3-hosptial on 10.09.2008 and he was discharged the next day, i.e., 11.09.2008.  The first respondent has stated that the appellant had not taken proper care during surgery and the post-operative stage. The appellant has denied the charge of any negligence either during surgery or during the post-operative stage. Before going into the mode of surgery adopted by the appellant, it is essential to consider the literature on various aspects of cornea and the types of surgery adopted for treatment of the cornea which is extracted by the District Forum in its order in paragraphs 8 and 9 which read as under:

8.         Both parties filed copies of some medical texts and extracts from books or articles. From these papers we may know same thing about cataract, cornea and corneal edema. The relevant extract are given below:

A Cataract is clouding of lens in the eye that affects vision. 

Cataract means an opacity of crystalline lens or its capsule.

Most cataracts are related to aging.

Cataract surgery involves removal of the cloudy lens and replacing it with an artificial lens.

There are two types of surgery – (1) Phacoemulsification (2) Extracapsular Surgery. A small incision is made on the side of cornea, a tiny probe is inserted, the cloudy lens is broken into pieces using ultrasound wave and the broken pieces are removed in phaocmulsification or small incision cataract surgery. 

A longer incision is made on the side of cornea, the cloudy core of the lens in removed in one piece and rest of the lens is removed by suction in ‘extra capsular surgery. (It appears that the present advanced procedure in Extracapsular Surgery involves small incision and not long incision).

Natural lens is often replaced by an artificial lens called intraocular lens (IOL).

Cornea is a transparent dome-shaped outer most layer of the eye. It is a tissue of highly organized cells and proteins without any blood vessels and gets nourishment from tears and aqueous humor inside the chamber. It consists of five layers.

1)         Epithelium the outermost layer of the cornea comprising about 10% of the tissue thickness. It blocks passage of foreign material into the eye and provides smooth surface that absorbs oxygen and cell nutrients from tears and distributes to the rest of the cornea.

(2)        Bowman’s layer lies directly below basement layer of epithelium. It is composed of strong layered protein fibrous and once injured can form a scar as the injury heals.

(3)        Stroma is beneath the Bowman’s layer and comprises 90% of the cornea thickness. It consists of water (about upto 78%) and collagen (about upto 16%).

(4)        A thin but strong sheet of tissue called Descemet’s membrane is under the

stroma. It is a protective barrier against infection and injuries.

(5)        Endothelium is the inner most layer of cornea. Its primary task is to pump excess fluids out of stroma. Without this pumping action the stroma would swell with water, become hazy and ultimately opaque. Once endothelium cells are destroyed by disease or trauma, they are lost for ever. If too many endothelial cells are destroyed, corneal edema and blind ness ensues, with corneal implantation the only available therapy.

Corneal edema: Corneal Edema is the swelling of the cornea following ocular surgery, trauma, infection, inflammation as well as a secondary result of various ocular diseases. Corneal edema can also occur following over wear of certain types of contact lenses………………. When the cornea swells, it may impair transmission of light   possibly decreasing vision.

Corneal edema is also described as follows:- It is a condition in which the cornea becomes overly hydrated. In order to remain transparent, the cornea is normally kept relatively dry through oxygen supplied in tears and the draining of water by the corneal endothelium. Any changes to the dehydration process or an influx of fluid can impede the process and allow fluid to accumulate.

Corneal edema can be caused by infection, corneal endothelial dysfunction (Fuch’s endothelial dystrophy) a viral corneal inflammation (keratitis), a rise in  intraocular pressure (as in glaucoma), postoperative changes, trauma, over wear of  contact lenses and ill-fitting contact lenses.

9.         The opposite parties also filed some extracts of medical text books relating to

eye surgery cataract extract and corneal edema. He also filed an answer from NDTV website but that answer is very brief and may not be relied upon. In ‘Principles and practice of ophthalmology’ there is a topic relating to corneal edema. The opposite parties filed copies of only two pages. In the 1st page of that text there is reference to the cause of corneal edema. The relevant text reads as follows:

“The mechanical barriers of the corneal endothelium and epithelium oppose the flow of water into the corneal stroma. The corneal endothelium also provides an active pump mechanism, acting to dehydrate the stroma, as does evaporation from the tear film. An increase in intraocular pressure, however, will cause hydration of the stroma”.

“Early epithelial edema may be recognised grossly by hand light examination. The normal luster of cornea is lost in the involved area. Slit lamp examination show epithelial bedewing tiny irregularities in the epithelial surface”.

Under the head cause it is mentioned in that text that the “corneal edema may evolve from a variety of pathologic situations and they may be grouped into two basic physiologic mechanisms (1) increased intraocular pressure (2) loss of integrity of the endothelial cell layer or endothelial pump function and that almost all cases of corneal edema may be explained by one or both of these mechanisms. This is also what is mentioned above in the text referred by the complainant.

18.            Of the complications referred to, the increase in intraocular pressure and irregularities in epithelial surface showing epithelial bedewing can be ruled out as the appellant and  Dr.Sudheer had not referred to them.  The District Forum observed that when intraocular pressure and irregularities in epithelial surface are ruled out, the inference could be drawn as to dysfunction in endothelial cell layer which could have been noticed by the appellant prior to the time of commencing the surgery  in case it was caused due to  any disease. The District Forum, thus concluded that edema of cornea was due to physical damage caused to endothelial layer.

19.            The first respondent after he was discharged from the respondent no.-3 hospital on 11.09.2008, he approached it again the next day, i.e. 12.09.2008 complaining pain, blurred vision and watering from the operated right eye and he was again admitted in the respondent no.3-hospital and the appellant referred him on 13.09.2008 to Dr.Sudheer of Pradeena Eye Hospital to rule out possibility of corneal haze. Dr.Sudheer opined that there was no post-operative inflammation or infection and the cornea of the first respondent was hazy.

20.            The District Forum held that hazy cornea was observed by the appellant on 12.09.2008 and the appellant failed to explain the cause for hazy cornea when there was no inflammation or infection during post-operative stage particularly in the circumstances where the appellant had noted the condition of the eye of the patient in ExA1 as cornea –clear, AC (anterior chamber) was well found and the eye was quiet.

21.            The appellant in his cross examination deposed of various types of cataract and he had mentioned in the case sheet the type of cataract the first respondent suffered from is that related to age, i.e. senile. He has deposed:

“There are different types of cataracts.  The cataracts are 1.  Age related cataract.  2.  Dramatic cataract, 3.  Congenitial cataract, 4.  Radiation cataract, 5.  Nuclear cataract, 6.  Cortical cataract. 7.  Subcapsular cataract.  I have mentioned the cataract of the complainant in the case sheet namely age related (senile)”

22.            By the observation of the Dr.sudheer, there were no post-operative stage inflammation or infection to the cornea of the operated eye of the first respondent. The onus thus has shifted on the appellant and the respondent no.3. The District Forum came to the conclusion that the damage to the epithelial layer could not be cured by an injury caused from outside unless the upper 4 layers are cut or intruded.  The District Forum came to the conclusion that it is due negligence of the appellant in conducting the cataract surgery upon the first respondent, the first respondent suffered from corneal edema, Paragraph 15 of the order reads as follows:

DW-1 stated in his affidavit that cataract extraction was made through small incision under ECCE method. It is observed that the reason for edema must be injury to the epithelial layer. Damage to the epithelial layer cannot be occurred by an injury from outside unless top – 4 layers are also cut or intruded. When the damage to the layer was not due to disease and when the upper layers of cornea are not shown to have suffered injury then the only reason could be physical damage to the endothelium layer was from inside, it could be only at the time of surgery and the injury must have been a surgical trauma. From Ex.A4 it appears the hazy appearance was at the center of the eye. Cornea spreads all over the eye. When haze is found only at the center it may be said that the damage to the cornea or damage to endothelium layer must be at the center of the eye. It is to be noted that during cataract surgery cloudy lens from centre will be removed with some instrument or the other. That instrument will be inserted though a longer or small incision made in the cornea. Then if the surgeon is negligent, there was high probability of damage caused to the endothelial layer at the center while extracting the cloudy lens.

23.            We do not find any infirmity in the finding recorded by the District Forum. However, while fixing the quantum of the amount awarded as compensation, we observe that the District Forum has not taken into consideration of the negligence of the complainant which the District Forum had also found in his not approaching the appellant or the respondent no.3 until 1.10.1008 and the first respondent had not consulted L.V.Prasad Eye Institute when the appellant referred him for evaluation of the problem. The District Forum observed :

The complainant was advised to go to Dr. Sudheer on 13.9.2008. According to the 1st opposite party the complainant was asked to revisit the hospital after taking advice from Dr. Sudheer there is no such mention made anywhere in the medical record. The statement of the 1st opposite party that the complainant was discharged on 13.9.2008 against medical advice is not correct as the discharge summary Ex.A2 dated 13.9.2008 did not show such reference. Though in the copy of inpatient record produced by the opposite parties under Ex.B6 the discharge was noted as on request such a mention was made by the opposite parties only to suit their defence. So it cannot be said that the complainant was asked to approach the opposite parties after examination by Dr. Sudheer. In Ex.A9 medical sheet issued by Dr.  udheer, Pradeena Eye hospital there is no mention made that the complainant may approach  he opposite party hospital again on 13.9.2008. Whatever may the advise given to the complainant be it is a fact that he did not approach the expert ophthalmologist to get suitable treatment. Such negligence on the part of the opposite party may have deteriorated the condition and chance of recovery was lost. Then it can be said that to some extent the complainant had contributed to the loss of vision.”

24.            The District Forum held there was contributory negligence on the part of the first respondent and yet it awarded an amount of `2,00,000/- which in our view appears to be on higher side and liable to be reduced to `1,00,000/-.

25.            In the result, the appeal is allowed. The order of the District Forum is modified. The opposite parties no.1 and  3 are directed jointly and severally to pay a sum of `1,00,000/- towards compensation with interest @9% p a., from the date of complaint till payment together with costs of `2,000/-. Time for compliance four weeks. The complaint against the opposite party no.2 is dismissed without costs.

                                                                         Sd/-

                                                                                                            I/C PRESIDENT

                                                                                Sd/-

                                                                             MEMBER

                                                                                Sd/-

                                                                            MEMBER

                                                                          Dt.04.12.2013

కె.ఎం.కె.*