KUNDAN KUMAR KUMAI

This is an application u/s 17(1)(a)(i) & (2) of the Consumer Protection Act, 1986.

Brief facts of the Complainant’s case are that, the Complainant is the sole earning member of his family consisting of three sons and wife. On 01/05/2019, the Complainant had gone for check-up before the OP no.1/Institute and the check-up had been done by the OP no.2/Doctor, during which the Complainant was diagnosed of having Left Eye Corneal Ulcer. On the same day, the OPno.1/Institute, compelled the Complainant to visit the OP no.3, with follow-up action on 04/05/2019 and 08/05/2019 and was directed to undergo admission for surgery on 09/05/2019. The Complainant underwent surgery on that very date i.e. 09/05/2019 and was discharged on the same day and he was given Intrastromal Injection in his cornea. The Complainant’s eye was bandaged, but after regaining consciousness, felt extreme pain and itching with burning sensation and had rushed before the OPs no. 1, 2 & 3, but none of them entertained him, stating that it would be reviewed after few days. It was the first time they had declared that the Complainant had ulcer.

Prior to that, the Complainant had visited Siliguri Lions Netralaya, for his itching problem in the eyes on 24/04/2019 and the doctors had prescribed Virson Gel and Maxivit. The Complainant for better satisfaction had also visited Dr. Pradhan’s Eye Care on 25/04/2019 till 29/04/2019, but there was no diagnosis of ulcer, was declared by anyone. The Complainant had been treated with Ketorolac Tromethamine Drops, Virson Gel, Systane Ultra Gel, Panthe gel and Pyrigesic Tablet. The Complainant further decided to visit Disha Eye Hospital, Siliguri on 13/05/2019 till 03/06/2019, wherein several medicines were prescribed to repair the discomfort of the Complainant as he was unable to open his operated eye. But as he did not find any relief, the Complainant had visited L. V. Prasad Eye Institute (Kar Campus) at Telangana, on 07/06/2019 and treated till 17/09/2019, but could not recover completely and lost his vision following which he was totally blind in his left eye.

Thus, the OPs no.1,2&3 neglected in their duty and service and had wrongfully diagnosed, being guilty of misconduct and malpractice. The Complainant lodged this complaint with necessary prayers. Hence this case.

The OPs no.1, 2 & 3 appeared to contest this case, by filing written version wherein they have mentioned that the complaint had been filed with a motivated intent and denied the allegations made by the Complainant. It was further mentioned that the case was bad for non-joinder and mis-joinder of parties as the Complainant had alleged that he had been treated by Eye Specialist of Disha Eye Hospital, Siliguri and L. V. Prasad Eye Institute (Kar Campus) at Telangana, who had not been made a party in this case. It was further mentioned that the OP no.1 was not only registered Eye Care Center but equipped with all the modern equipment and technology to provide comprehensive eye service. The Institute was also recognized under the National Programme for Control of Blindness, a Scheme of Government of India for performing free of cost eye surgeries for needy patients. The OP no.2 had been working with the OP no.1 since last two years in the Out Patient Department (OPD) and referred patients for intervention in sub-specialty like retina, cornea, oculoplastic, to other specialists. In the instant case also, the OP no.2, after examination of the patient had diagnosed with Left Eye Corneal Ulcer and referred to OP no.3. The OP no.3, is a MS (Fello Ship in Cornea) and attached with the OP no.1. It was also mentioned that the Complainant had been first treated at Siliguri Lions Netralaya by Dr. Kritima Gurung on 24/04/2019 and the Complainant had received treatment from Dr. Ranjan Pradhan of Dr. Pradhan’s Eye Care on and from 25/04/2019 to 29/04/2019, before visiting the OP no.1 on 01/05/2019. The Complainant had intentionally suppressed the said treatment done by several doctors and had not provided the treatment sheets, prescriptions, except one Registration Card of Siliguri Lions Netralaya and a prescription dated 29/04/2019 of Dr. Pradhan’s Eye Care. It was further mentioned that the Complainant had been treated as per standard treatment protocol and there was no mechanism to compel a patient to receive treatment at the OP no.1 and no surgery/injection procedure is undertaken without obtaining informed consent. The OP no.3 had attempted to treat the condition of the Complainant with medicines and eye drops, but when the Corneal Ulcer was not responding to treatment, Intrastromal Injection had been advised which is a recommended effective option for the treatment of Corneal Ulcer. It was also denied that the Complainant preferred to visit Disha Eye Hospital, Siliguri in 13/05/2019, but it was the doctor of OP no.1, who had referred the Complainant to Disha Eye Hospital, Siliguri, which was mentioned in the prescription dated 13/05/2019, as the OP no.1 did not have infrastructure for corneal transplantation. Moreover, an ultrasound scan of the Complainant’s done at Disha Eye Hospital, Siliguri on 13/05/2019 revealed Vitreous Cavity and Retina were within normal limit, indicating the posterior segment of the eye which is vital for eye sight was not affected till then. Furthermore, no other hospital or a single doctor who had attended the Complainant had recorded the diagnosis or treatment procedure was wrong. On the other hand, Corneal Scrapping for KOH was found to be positive and duly mentioned by Dr. Mrinmoy Das of Disha Eye Hospital, Barrackpore dated 14/05/2019, confirming the presence of fungal element. That apart the Complainant underwent three surgical procedures in Disha Eye Hospital on 22/05/2019, 23/05/2019 and 28/05/2019. Prescription of the Disha Eye Hospital, Siliguri dated 03/06/2019 recorded LE Graph Infection and LE Sloughing Corneal Ulcer, suggesting probable requirement of LE Evisceration. At LVPEI, Hyderabad where the Complainant was attended by many doctors, Repeat Cornea Transplantation had been done after several follow-up the graft had failed. None of the doctors had reported that the loss of eye sight was due to treatment at OP no.1. Hence, it was prayed that the complaint be dismissed.  

Both the sides have examined and cross-examined their witnesses and furnished certain documents which have been kept in the record.

                                                                    Decisions with Reasons

Ld. Advocate for the Complainant at the time of final hearing, had submitted that the Corneal Ulcer in the left eye of the Complainant, had been first detected on 01/05/2019, when the Complainant had visited the OP no.1/Eye Institute. Prior to that visit the Complainant’s left eye had not undergone any surgical intervention and the treatment adopted by the OP no.1/Institute was not as per the treatment that should have been meted out to the Complainant. Even after visiting higher center of treatment like LV Prasad at Hyderabad, they failed to rectify the improper treatment done by the OPs. Consequently, the Complainant had lost vision of the said operated left eye and was gradually affecting the other eye also due to the fault of the OPs, affecting the Complainant’s ability to carry on his profession as a driver and had to rely on others for his survival. It was further prayed that the compensation sought for may be granted.

On the other hand, the Ld. Advocate for the OPs, had countered the above argument, by stating that the Complainant had been treated in the OP no.1/Institute, by the OP no.3 when she had administered the Intrastromal Injection which was the proper medical protocol for treating such Corneal Ulcer. It was further submitted that the Complainant had been referred to Disha Eye Hospital and the ultrasound scan of the Complainant revealed Vitreous Cavity and Retina were within the normal limit, indicating the posterior segment of the eye, which proved that vital eye-sight had not been affected till then. That apart Dr. Mrinmoy Das of Disha Eye Hospital had prescribed for corneal scrapping for KOH which again confirmed the presence of fungal element which again corroborated with the diagnosis made by the OPs. The LV Prasad Eye Institute at Hyderabad had also diagnosed with the corneal ulcer. Moreover, the Complainant had undergone three surgical procedures at Disha Eye Hospital. Furthermore, at LV Prasad Eye Institute the doctor had diagnosed with multiple loose sutures with graph melting and had advised for repeat TPK (Cornea Transplant) under extremely guarded prognosis. The Complainant had undergone the repeat cornea transplantation, but after several follow-ups the same had failed. He had further argued that none of the doctors had mentioned that the loss of eye-sight was due to the treatment of the OPs.

Under the circumstance, when all the doctors had concurred, that the Complainant had been suffering from viral eye infection and infection of conjunctiva and cornea and the Intrastromal Injection had been prescribed, as the Complainant was not improving through medicines and eye drops. But as the above injection did not alleviate the pain and suffering of the Complainant did not mean that the treatment carried upon the Complainant was negligent. Moreover, the expert opinion obtained from the NBMC&H had also opined that the treatment was in line with the protocol of treatment and no discrepancy and mismanagement was found. It was further prayed that the Case of the Complainant be dismissed.

The factum of the case as regards the treatment of the Complainant at the OP no.1/Institute and by the OP no.2 and the OP no.3 and the diagnosis of the left eye corneal ulcer and the subsequent application of the Intrastromal Injection and the subsequent treatment at Disha Eye Care Siliguri and the LV Prasad Eye Institute at Hyderabad, is not disputed. In such a scenario, the onus is upon the Complainant to prove that the treatment meted out to him at the OP no.1/Institute was not properly diagnosed and negligently done.

In this regard, the Complainant has relied on the prescription dated 01/05/2019 of the OP no.3 at the OP no.1/Institute and the discharge summery dated 09/05/2019 of the OP no.1/Institute and the OPD report of Disha Eye Hospital, Siliguri dated 13/05/2019 and the prescription of Dr. Mrinmoy Das dated 14/05/2019 at Disha Eye Hospital, Barrackpore, prescription of Disha Eye Hospital, Siliguri dated 16/05/2019, 20/05/2019 and Discharge Certificate of Disha Eye Hospital, Siliguri dated 22/05/2019, 23/05/2019, 27/05/2019, 28/05/2019, prescription dated 03/06/2019, OPD report of LV Prasad Eye Institute dated 07/06/2019, 09/06/2019, 11/06/2019, 02/07/2019, 05/07/2019, 07/06/2019 and 06/12/2019.

Even though the factum of the treatment of the Complainant of his left eye and the subsequent diagnosis of LE Corneal Ulcer is not disputed, but now it needs to be established whether the diagnosis of the Complainant had been proper or not. In this regard, the prescription of the OP NO.1 dated 01/05/2019 clearly proves that the Complainant had been diagnosed with LE Corneal Ulcer. The prescription dated 13/05/2019 of Disha Eye Hospital, Siliguri also corroborates the diagnosis of LE Corneal Ulcer. Hence, it can be simply concluded that the diagnosis had been proper and the Complainant had failed to prove that the diagnosis was improper. The treatment of such corneal ulcer by Intrastromal Injection is also in conformity with the medical literature and accepted as proper medical treatment, in case of such corneal ulcer by both Disha Eye Hospital, Siliguri and LV Prasad Eye Institute, Hyderabad. But as the pain and discomfort of the Complainant arose immediately after the administering of the above Intrastromal Injection on 09/05/2019, the question that arises is with the administering of the Intrastromal Injection, which was meant to provide relief to the Complainant, did not only aggravate the discomfort, but increase the complications of the treatment resulting in the loss of vision in the left eye of the Complainant. Moreover, the Complainant had not undergone any such surgical intervention prior to the treatment by the OP no.3 on 09/05/2019, therefore it is quite logical for the Complainant to question the treatment. It is also not understandable as to why the Complainant had to suffer the pains and sufferings after the Intrastromal Injection was administered on his left eye, when everything points that the Complainant should have experienced relief from the pains and sufferings after the administering of the above Intrastromal Injection.

This is further vindicated by the prescription dated 16/05/2019 of Disha Eye Hospital, Siliguri where in spite of being treated by Dr. Mrinmoy Das of Disha Eye Hospital, Barrackpore “poor prognosis” had been noted, when prior to the administering of the Intrastromal Injection, the Complainant had gone for treatment of the LE pain and itching. Furthermore, the medical journals also support that the Intrastromal Injection was the remedy for such treatment of corneal ulcer. Therefore, the only conclusion that can be arrived is that, the administering of the Intrastromal Injection was not properly and negligently done.

As far as the treatment protocol of the LV Prasad Institute at Hyderabad is concerned, they had merely tried to repair the multiple loose sutures left by the surgeon of Disha Eye Hospital, Siliguri and failing which they had done re TPK under extremely guarded GVP, which ultimately resulted in failure following which the Complainant lost his vision. But it should not be forgotten that the entire treatment undergone by the Complainant, had resulted after the administering of the fateful Intrastromal Injection on 09/05/2019. In other words, the administering of the Intrastromal Injection was the genesis of the loss of vision, suffered by the Complainant. In this regard, the expert opinion offered by the medical officers of NBMC&H, Siliguri, also do not come to the rescue of the OPs, as the procedure is not in question or dispute. Only the manner of administering the Intrastromal Injection has raised the issue, as the discomfort and sufferings of the Complainant started thereafter.

Hence in view of the above findings and observations, it can be safely concluded that as the sufferings of the Complainant had started after the administering of the Intrastromal Injection, the Complainant had been able to prove that the OP no.3 and the OP no.1/Institute, had been instrumental in negligently administering the Intrastromal Injection. Since the role of the OP no.2 is not associated with the administering of the Intrastromal Injection, the case of negligence against him does not appear to have been made out.

Even though loss of vision in the left eye of the Complainant is a very painful experience having a lot of phycological ramifications and cannot be fully compensated by money, but a lump sum to tide the pain of sufferings, should lessen the pain and agony of such sufferings. However, a lump sum amount of Rs.20,00,000/- (Rupees twenty lakhs) only, would go a long way to ease the financial burden, hovering over the Complainant.

As a result, the instant case succeeds.

                                                                            It is therefore

                                                                             ORDERED

That the instant case be and the same allowed on contest against the OPs no. 1 & 3 and dismissed against the OP no.2, but without costs.

The OPs no. 1 & 3 are directed to pay the Complainant Rs.20,00,000/- (Rupees twenty lakhs) only, jointly and severally within 45 days, from the date of receipt of this Order.

Copy of the Order be sent to the Parties free of cost.