Tamil Nadu

StateCommission

A/138/2019

C.Jothi, - Complainant(s)

Versus

The Director, ESI, Corporation, And 2 others. - Opp.Party(s)

M/s. K.M.Malar Mannan

20 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

 

F.A. Nos.360 of 2017 and 138 of 2019

(Against the Order, dated 03.10.2017, passed in CC No.227/15,

on the file of  the DCDRF, Chennai-South)

                                                    

                               Orders pronounced on:  20.04.2022

 

F.A. No.360 of 2017

            

The Director,

E.S.I. Corporation,

No.143, Sterling Road,

Nungambakkam,

Chennai 600 034.

 

2. Dr.D.Rajakannan, M.S. (OPHL),

Eye Specialist,

Ophthalmic O.P.,

E.S.I.C. Hospital,

K.K. Nagar,

Chennai 600 078.

 

3. The Deputy Medical Superintendent,

E.S.I. Corporation,

K.K. Nagar,

Ashok Pillar Road,

Chennai 600 078.                                                                                                                            … Appellants / OPs

 

Vs.

 

C. Jothi,

S/o.Chinnappan,

No.284, Muthu Nagar Extn.,

Melamenammedu, Vellavedu,

Chennai 600 124.                 … Respondent/Complainant

F.A. No.138 of 2019

 

C. Jothi,

S/o.Chinnappan,

No.284, Muthu Nagar Extn.,

Melamenammedu,

Vellavedu,

Chennai 600 124.                                                                                                                     … Appellant / Complainant

 

vs.

 

The Director,

E.S.I. Corporation,

No.143, Sterling Road,

Nungambakkam,

Chennai 600 034.

 

2. Dr.D.Rajakannan, M.S. (OPHL),

Eye Specialist,

Ophthalmic O.P.,

E.S.I. Hospital,

K.K. Nagar,

Chennai 600 078.

 

3. The Deputy Medical Superintendent,

E.S.I. Corporation,

K.K. Nagar,

Ashok Pillar Road,

Chennai 600 078.                                                                                                                         … Respondents/ OPs

 

    

 

             For Appellants in FA.360/17

               & Respondents in FA.138/19  :  Mr.K.C.Ramalingam

               For Appellant in FA.138/19

               & Respondent in FA.360/17   :Mr.K.M.Malarmannan        

 

These First Appeals are coming up for hearing today and, after hearing the counsels for the parties and upon perusing the material available on record, this commission passes the following:     

 

COMMON ORDER

 

R.Subbiah, J. – President.     (Open Court)

 

               The present Appeals arise from the impugned order, dated 03.10.2017, of the DCDRF, Chennai-South, passed in C.C. No.227 of 2015, whereby, the complaint filed by the appellant in F.A. No.138 of 2019 came to be allowed in part with a direction to the ESI Corporation/Appellants in F.A. No.360 of 2017, to pay him a total sum of Rs.51,778/- towards medical expenses, compensation and litigation costs.

 

       2. While the OPs/Appellants in F.A. No.360 of 2017 challenge the impugned order in issuing direction for payment as above mentioned, by filing cross appeal in F.A. No.138 of 2019, the complainant seeks for enhancement of the amount awarded by the District Forum.

 

      Inasmuch as the main appeal and the cross-appeal are interlinked since both arise from the very same impugned order and also, the issues being common, they are disposed of by this common order.  For the sake of convenience, the parties shall be referred to in the course of this order, as per their respective rankings before the District Forum.

 

     3. The case of the complainant, as projected in the complaint filed by him before the District Forum, in brief, is as follows:-

             The complainant, while working as Foreman in a company that was covered by E.S.I. (Employees’ State Insurance), had problem in the right eye and, on 20.12.2013, he consulted the 2^nd OP, who told that he was suffering from cataract and that the same could be cured through a minor surgery. Accordingly, on 04.01.2014, he got himself admitted in the ESI Hospital at KK Nagar, where, after undergoing surgery on 06.01.2014, he was discharged on the next date.  However, the complainant developed more pain than what he was undergoing prior to the surgery and hence, he again consulted the Doctor/2nd OP who, without any clinical examination, only prescribed eye-drops.  Even after proper compliance with the prescribed medical advice, the complainant still suffered high irritation, itching and watery eyes and once again, on consultation, the 2^nd OP just orally advised him to take rest for three months. Despite repeated consultations with the 2^nd OP, the complainant did not receive proper medical care for the persistent pain and trouble; hence, after duly intimating the 1^st OP, he took treatment from Sankara Eye Hospital, where his right eye was operated on 17.04.2014.  The report of the said Hospital revealed that the recurrent pain and inflammation in the eye was due to retention of lens material and that, after undergoing vitrectomy and removal of the retained lens fragments on 17.04.2014, his vision improved and also, he was relieved of the pain and redness in the eye.  Consequently, the complainant lodged a complaint with the 1^st OP on 07.01.2015 about the negligence on the part of the 2^nd OP in wrongly fitting the lens in the right eye.  By reply, he was asked to appear before the enquiry committee, but, despite appearance, there was no response from the said committee and hence, he made personal representation to the 3^rd OP on 11.3.2015, but in vain. Hence, he was constrained to issue the legal notice, dated 24.04.2015, for which, a false and frivolous reply was given by the 2^nd OP. Therefore, he filed the complaint before the District Forum seeking to direct the OPs for payment of medical expenses incurred by him, award of compensation, etc.

 

             4. In the written version filed by them, the Opposite Parties, inter alia, replied thus:-

             The complainant was under treatment from 20.12.2013 to 21.03.2014 on a reference made by the ESI Dispensary, Poonamallee, to the OP/Hospital with the observation of the Dispensary Doctor on 20.12.2013 to the effect ‘referring  a case of known HT (Hyper Tension) with cataract for further treatment’.    By ruling out other medical complications, he was admitted on 04.01.2014 in M.S. Ortho Ward.  On the same date, Right Eye scanning was done and the power of Intraocular Lens (IOL) was calculated.   The complainant was given Tab.Diamox and Inj. T.T.O. 5 CCIM with Xylocaine test dose. Further, Tropicamide Plus eye-drops were administered from the morning of the day of cataract surgery.  On 06.01.2014, he was operated for cataract in the right eye with Posterior Capsular IOL under local anesthesia and prescribed Amoxcillin (3 times a day), Tab.Paracetamol (twice a day) and Tab.Rantac (twice a day), for 5 days. 

             The said surgery performed on 06.01.2014 was uneventful and, on 07.01.2014, after further examination, the complainant was prescribed and supplied Perdfort eye drops and discharged with advice for leave till 03.02.2014 and post-operative follow-up.  During the post-operative check-up on 17.01.2014, 31.01.2014 and 04.02.2014, his right eye was diagnosed ‘Pesdophakia (normal)’ and  he was advised to continue Perdfort eye drops and to be in rest from 04.02.2014 to 26.02.2014, as he had regular/normal post-operative vision.  The redness/itching/watering was due to disturbance of normal eye flora.  It was only on 17.02.2014, his vision was 6/60 (OD) and 6/9 (OS).  To control the autologous inflammation, anti-inflammatory drops-Prednisolone was given.  On 21.02.2014, there was satisfactory improvement in the vision with OD – 6/12 and OS – 6/6.  During subsequent visits on 28.02.2014, 04.03.2014 and 21.03.2014, there was poor co-operation for post-operative check-up.  Considering the intensity of the post-operative condition, although the OP was willing to continue/provide the treatment as needed, the complainant preferred to go to a hospital of his own choice.  The complainant was operated in a private Hospital for Vitrectomy on 17.04.2014 for autologous inflammation and the said Hospital also prescribed more or less the same medicines.  Further, in response to the representations, dated 31.05.2014 and 07.01.2015, the complainant was asked to appear before a Panel of Doctors.  On the question as to whether there was any lack of care and skill in performing the cataract surgery, scrutiny was done by an independent Senior Civil Surgeon of Ophthalmology from the Govt. Ophthalmic Hospital, Chennai-8,  and the expert opinion was that 13 persons including the complainant underwent cataract surgery at the OP/Hospital on 06.01.2014 and that none of them suffered any reaction or infection at the time of discharge on 07.01.2004.  While the other 12 patients had no complaint or grievance, only the complainant came on 17.02.2014 with decreased vision and, on examination, he was found to have corneal edema with inflammatory reaction in anterior chamber, with vision of 6/60, for which, he was intensely treated with tropical Prednisolone eye drops and oral tablets Wysolone.  He had uveitis due to posterior capsular rent/zonular dialysis with cortical matter leaking into vitreous.  Since such complication can occur to anybody, during the visit made by the complainant, the prognosis of the clinical condition was explained with an offer by the OPs for further treatment at their Hospital, however, he preferred to pursue further treatment from the other Hospital.  As such, there being no lapse, negligence, lack of care & skill in performing the surgery and since the OPs were always ready and willing to provide proper post-operative care, no element of negligence or deficiency in service is attracted, hence, the complaint is liable to be dismissed.

 

             5. Before the District Forum, both sides filed their respective proof affidavits and, on the side of the complainant, 49 documents were marked as Exs.A1 to A49 while the OPs marked 3 documents as Exs.B1 to B3.  By the impugned order, dated 03.10.2017, the District Forum allowed the complaint in part, by directing the OPs to pay the complainant a sum of  Rs.31,778/- towards medical expenses, Rs.15,000/- as compensation for the mental agony, besides costs of Rs.5,000/-.  Aggrieved by the same, the ESI has filed F.A. No.360 of 2017 and the complainant has filed Cross Appeal in F.A. No.138 of 2019, seeking to enhance the sum awarded by the District Forum.

            

6. Heard the submissions of both sides and carefully perused the materials available on record.

 

             7.  It is the case of the complainant that, after the cataract removal surgery performed by the 2^nd OP, pain and itching in the right eye persisted and, during the visits made by him, the 2^nd OP, without any proper clinical examination, simply prescribed eye-drops with an advice to be in continuous rest.  Not able to bear the persistent pain, he visited Sankara Eye Hospital where, after examination, it was found ‘chronic postoperative uvietis secondary to retained lens material post cataract surgery elsewhere’; as such, he had to undergo removal of the retained lens material.  According to the complainant, it is only the negligent act of the 2^nd OP in performing the surgery that necessitated him to undergo the 2^nd surgery at the Sankara Eye Hospital for removal of the retained lens material, which aspect is evident from the discharge summary of the said Hospital under Ex.P39.  The OPs are not refuting the said summary, in particular, the aspect regarding removal of the retained lens material, which clearly indicates that the 2^nd OP failed to perform the surgery even with minimum degree of skill and caution.   Although, it is now argued that the OPs were always ready and willing to provide the post-operative care, in reality, they never exhibited such receptive conduct.  In fact, the complainant, after making a number of visits post-operatively, could not even get the minimum required response or care from the OPs, which ultimately had driven him to visit the other Hospital.  While so, although the District Forum rightly accepted the case of the complainant, it has committed an error in failing to award specific compensation against the pain & sufferings and such other heads as claimed by the complainant. 

         On the contrary, the OPs would claim that, out of the 13 patients, who underwent surgery for cataract removal, except the complainant, the other 12 patients had no post-operative complaint.  The complainant had developed complication due to hypersensitivity of autologous tissue component that corresponds to posterior capsular rent/zonular dialysis with cortical matter leaking into vitreous. Having treated him intensely and subsequently explained him that they were willing to provide further treatment at the ESI Hospital itself, on his own choice, the complainant went to Sankara Eye Hospital for further treatment.  Therefore, it cannot be alleged that there was negligence or deficiency in service on the part of the OPs.  As such, the impugned order suffers from factual errors and the same is liable to be dismissed.

            

      8. But, we are unable to accept the case of the OPs for the simple reason that, if the surgery performed by the 2^nd OP was with reasonable medical care and if proper post-operative attention was given in a real sense, there was no need for the complainant, who got aggravated pain than what was experienced by him before the first surgery, to go for a second surgery in the other Eye Hospital for the very same problem.  A perusal of the Out-Patient Chit of the OPs under Ex.A9 would show ‘IOL/POOR’ that would suggest fixation of poor lens.  The complainant said to be suffering from persistent pain, not being able to get any real post-operative care and attention from the OPs, visited Sankara Eye Hospital, where he had undergone the surgery and Ex.A39/Discharge Summary of the said Hospital is quite specific that he had to undergo surgery for removal of the retained lens material. A combined reading of Exs.A9 and A39 would amply make it clear that neither the surgery was performed by the 2^nd OP with reasonable care nor proper post-operative care was extended by the OPs to the complainant.   In such circumstances, without  reference to any medical literature or specific evidence, by simply applying the principle res ipsa loquitur (the thing speaks for itself), we conclude that certainly, there was deficiency in service-cum-negligence on the part of the OPs both in performing the surgery and in providing the post-operative care.  At the same time, since the District Forum has reasonably fixed the amount under the respective heads for medical expenses, compensation and costs, we see no justification to entertain the plea of the complainant in the Cross Appeal seeking enhancement of the sum awarded.  Thus, we do not see any error or infirmity in the order passed by the District Forum.

 

          9. In the result, both the appeals fail and they are dismissed.  

 

R.VENKATESAPERUMAL                                                                                                                              R.SUBBIAH, J.

MEMBER                                                                                                                                                           PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/Mar/2022.