BEFORE THE  CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

                               Dated this the 31^st day of May 2017

                                                                                      Filed on : 23.12.2014

          PRESENT:

       Shri. Cherian K. Kuriakose,                        President.

       Shri. Sheen Jose,                                       Member.

       Smt. Beena Kumari V.K.                                      Member.

                                               C.C.No.956/2014                                                                                                               Between   

O R D E R

Beena Kumari V.K.   Member 

1)      A brief statement of facts of this complaint is as stated below:

          The complainant was admitted to the 1^st opposite party – Hospital on 27.02.2012 with I.P. No. T11677/3.  He was suffering from itching and irritation in the left eye subsequent a fall of some dusts 12 days back.  After examination of the left eye and after doing various tests the 2^nd opposite party – Doctor advised a corneal replacement surgery (the complainant has mistakenly stated as retinal replacement) and on depositing Rs.11,000/-. The corneal replacement surgery was done on 09.03.2012 and he was discharged on 14.03.2012.  On 23.04.2012 the complainant noticed a white scar on his left eye and his left eye was examined by the 2^nd opposite party to find a faded vision and on administering some eye drops the complainant lost his vision and on further examination, Dr.Seema found a gap in the side of the corneal graft and the gap was filled with gel and lens was also fixed.  Subsequently, the complainant felt pain and itching in the left eye.  A 2^nd surgical operation was done on 11.05.2012 by the 2^nd opposite party – Doctor and the cornea stitched earlier on 09.03.2012 was removed.   It is submitted that at the time of the 2^nd surgical operation, the 2^nd opposite party without completing the corneal stitching, left the operation thereafter and she delegated her responsibility to Dr.Seema with the clear knowledge that Dr.Seema is incapable to do the work in a perfect manner and Dr.Seema and the nurses were so careless that while doing the surgery they were discussing their private matters. Due to the negligent and deficient service offered to the complainant by the opposite parties, the 2^nd operation also became a failure.  Again a third operation was done by the 2^nd opposite party on 17.05.2012 free of charges.  But after the 3^rd surgical operation, the 2^nd opposite party checked the left eye of the patient only on 23^rd May, 2012.  The post operative checkup was done by junior doctors during the period from 18.05.2012 to 22.05.2012.  The 2^nd opposite party on examination of the left eye on 23.05.2012, informed the complainant that there was an yellow colour in the left eye and required the complainant to stay back in the 1^st opposite party- Hospital for further treatment and at this stage the complainant insisted for his discharge and he was discharged on 25.05.2012.  Thereafter the complainant admitted himself to Aravind Hospital, Madurai, Tamil Nadu on 28.05.2012.  The infection of the left eye was cured within 15 days by administering eye drops and by taking necessary medicines.  But the complainant could not regain his left eye sight and on 05.07.2012 the complainant was informed that on account of repeated stitching adjacent to one another around the eye, there is no sufficient space for further corneal stitching.  As a result the complainant was not able to regain his left eye sight.  The complainant contended that  he lost his left eye sight due to the negligent and deficient service offered by the opposite parties for which both the opposite parties are jointly and severally liable to compensate the complainant and this complainant is filed seeking directions of this Forum to the opposite parties for which both the opposite parties are jointly and severally liable to compensate the complainant and this complaint is filed seeking directions of this Forum to the opposite parties to pay rs.5,00,000/- to the complainant for the loss of his left eye sight due for the loss of his left eye sight due to the negligent and deficient service offered, to refund Rs.87,073/- to compensate the treatment expenses, to pay Rs.25,000/ for the mental agony suffered by the complainant along with costs of Rs.10,000/-.

2)      Version of the opposite parties

          It is submitted by the opposite parties that the complainant was admitted to the 1^st opposite party – Little Flower Hospital on 27.02.2012 with the history of fall of foreign body in his left eye 12 days back and the doctors who had treated the complainant during the 1^st twelve days are not made parties to this complaint.  Therefore this complaint is bad for non-joinder of necessary parties and the complaint is therefore not maintainable.  Without prejudice to the above, the opposite parties submitted that the complainant was first attended by Dr.Girija, Consultant ophthalmologist and the eye sight of left eye was CFCF (Counting Finger Close to Face) and Dr.Girija diagnosed Viral Keratitis and the complainant was referred to the Unit headed by the 2^nd opposite party – Doctor Aneeta Jabbar for further steps to treat the complainant and Dr.Seema of the said unit examined the left eye of the complainant on 27.02.2012 itself and she diagnosed ‘Fungal Keratitis’  and the 2^nd opposite party also examined the left eye various tests like Liver Function test, blood sugar test etc were done on 28.02.2012 and the fasting blood sugar was 192 and a specimen scraping revealed ‘fungal hyphae’ and fungal drops administered systemic medicines were also given to the patient.  The same medicines continued and on 03.03.2012 the pressure of the left eye increased and by 05.03.2012 there was increased infiltration which increased on subsequent days and on 09.03.2012 ‘Therapeutic Keratoplasty’ was done. The opposite parties have given a date-wise details of treatment given to the complainant and he was discharged on 14.03.2012.  On review after 10 days ie., on 24.03.2012 a little edema was seen in the left eye and the vision was half meter, graft was perfect and steroid was given to prevent graft rejection and on 29.03.2012 the vision of left eye was one meter and on 29.03.2012 the vision improved to 6/24 P and infection was formed on 23.04.2012 he was admitted to the 1^st opposite party hospital and scraping was done on 24.04.2012.  But on 26.04.2012 infection was found inside the graft and there was exudates adherent to glue applied.  A 2^nd re-grafting done on 11.05.2012 and the infected first graft was removed.  After giving necessary treatment the complainant was discharged on 14.05.2012.  The vision was PL + and third corneal transplant was done on 17.05.2012 but on 21.05.2012, the vision of the left eye was ‘hand movements. On 25.05.2012 early scleritis or inflammation of sclera or white portion was formed and the complainant was discharged on 25.05.2012 at his request and the treatment summary was also given to the complainant later.   It is submitted that the entire treatment given to the complainant was with at most care and caution.  The contention of the complainant that he lost his eye vision due to lack of proper care is emphatically denied and the opposite parties sought for the dismissal of the complaint with costs Rs.10,000/- each to the opposite parties.

3)     Issue No. (i) Whether the complaint is maintainable before this      Forum?

Issue No. (ii):    Whether the complainant has proved negligent service on the    part of the opposite parties?

Issue No. (iii): Whether the opposite parties are liable to pay    compensation of 5 lakh rupees for loss of his eye sight  to the complainant and another Rs. 25,000/- for mental agony suffered by the complainant?

Issue No. (iv): Whether the opposite parties are liable to refund medical   expenses incurred of Rs.87,073/- along with costs?

4)      The complainant gave oral evidence as PW1 and the documentary evidence marked as Exbt.A1 to A9.  The opposite parties have only oral evidence adduced through DW1 and the medical records marked as
Exbt. X1.

5)      Issue No. (i): The opposite parties contended that this complaint is bad for non-joinder of the doctors who had treated the complainant during the 12 days prior to his admission to 1^st opposite party – Hospital.  This complaint is filed alleging negligence and deficiency in service on the part of the opposite parties while conducting the surgeries on the left eye of the complainant.  The opposite parties in their version submitted that the complainant was on eye drops during the 12 days prior to the admission to the 1^st opposite party – Hospital.  No surgery was done prior to the admission of the complainant to the 1^st opposite party – Hospital. Therefore we find that the non-joinder of the doctors who prescribed eye drops during the 12 days prior to the admission to the 1^st opposite party – Hospital is not necessary or fatal to the complainant filed before this Forum.  We find that this complaint is maintainable before this Forum.

6)      Issue No. (ii) and (iii)

          The main allegation raised in the complaint is that due to the negligence and deficiency in service on the part of the opposite parties, the complainant lost his left eye sight.  The complainant was under treatment of the opposite parties during the period from 27.02.2012 to 25.05.2012.  The complainant was an inpatient in the 1^st opposite party – Hospital during the period as stated below:

          The opposite parties in their version have given date war details of treatment offered to the complainant during the period from 27.02.2012 to 25.05.2012.  The complainant was first admitted to the 1^st opposite party – Hospital on 27.02.2012.  In the Exbt. A2 letter dated 07.03.2012 issued by the 2^nd opposite party to the Insurance Medical Officer it is stated that the complainant was admitted to the 1^st opposite party Hospital on 27.02.2012 and he was treated on an emergency basis.  On examination of the left eye of the complainant, the consultant ophthalmologist diagnosed the possibility of ‘Funfal Keratitis in the left eye.  At the time of admission the left eye sight was CFCF (Continuing Finger Close to Face, blood sugar was 192.  The patient was referred to the unit headed by the 2^nd opposite party –
Dr. Aneeta Jabbar for further treatment.  On 28.02.2012 corneal scraping was done as revealed at page 98 of Exbt. X1.  Since the specimen test showed fungal hyphae in the left eye, systemic medicines were also given.  The medicines continued but on 03.03.2012 the pressure of the left eye increased and necessary medicines were given.  But there was increased pressure and infiltration on 05.03.2012.  Re-scraping done on 06.03.2012 but the infiltration was spreading on 07.03.2012.  Therefore, it was decided to do Therapeutic Keratoplasty and it was done on 09.03.2012.  The patient was discharged on 14.03.2012, even when biopsy result received on 13.03.2012 showed Keratitis or inflammation of cornea.  The patient was discharged on 14.03.2013 since there was no complaint from the patient.  We find that there is deficiency in service on the part of the opposite parties in discharging the patient even when the biopsy result received on 13.03.2012 showed ‘Keratitis’.  The above fact was also not mentioned in the Exbt. A1 discharge summary.  There was deposit on graft side on 10.03.2012 (see page 99 of Exbt. X1) and Keratitis developed on 13.03.2012, though it was noted therein that the graft was clear and sutures intact at the time of discharge on 14.03.2012. We find that on 14.03.2012 the patient was discharged not in good condition.  The complainant noticed a white scar in the left eye on 23.04.2012. The complainant was admitted to the hospital on 23.04.2012 since infection was formed in the grafting.  He was given steroid to prevent rejection of graft.  The vision was ½ meter and the patient could read big letters as on 23.04.2012.  The nurse administered some eye drops in the left eye.  Immediately the patient lost his left eye sight completely.  The complainant’s left eye was immediately cleaned and he was informed by Dr. Seema that there was a gap in the side of the cornea and she applied gel and the gap was filled and a lens was also fixed but the complainant could not get the vision of the left eye.  On lab investigation, the 2^nd opposite party informed that there was graft infiltration and 2 sutures were loose, 4 sutures intact (page 10 of Exbt X1) necessary medicines given to the patient.  On 26.04.2012 there was exudates adherent to glue or gel applied ie., there was infection inside the graft.  The medicines changed and treatment continued and the patient was discharged on 02.05.2012 as evidenced by Exbt. A5 discharge summary wherein it is noted that at the time of discharge the condition of the patient was “LE glue insti, BCL + Resolving infiltrate”.   It was also stated that on corneal scraping no organisms were found.  From the facts stated above it is evident that the patient was discharged both on 14.03.2012 and on 02.05.2012 not in a good condition.

8)      After the discharge on 02.05.2012, the complainant was asked to come for review after one week and accordingly when the complainant approached the opposite parties on 09.05.2012 ultra sound scan was taken which revealed graft infiltration.  Therefore a second surgery was advised by the 2^nd opposite party – Doctor and on 11.05.2012 ‘Therapeutic re-grafting was done and another cornea of a 42 year old person was stitched and the infected first graft was removed.  The complainant in his proof affidavit in paragraph 5 submitted that the 2^nd opposite party left the operation theatre without completing the corneal stitching and the 2^nd opposite party entrusted Dr.Seema who assisted her to complete the corneal stitching. The above fact was not specifically denied by the 2^nd opposite party in her version.  It is stated in the version that Dr.Seema is  qualified doctor, having 12 yeas experience.  There was increased pressure in the left eye subsequent to the re-grafting and the condition deteriorated on 14.05.2012 that the anterior chamber of the left eye was filled with blood clots and necessary medicines including injection were given to the patient and the infection was found spreading outside the grafted area on 15.05.2012.  Therefore, grafting was again done for a 3^rd time by the 2^nd opposite party on 17.05.2012 free of any charges.   Necessary medicines were given and the same treatment continued and on 25.05.2012 it was suspected that the left eye was developing early scleritis (Inflamation of sclera or white portion) and the complainant was informed by Dr.Seema that there is no possibility of curing the left eye.  At this juncture the complainant asked for his discharge and he was discharged on 25.052012.  At the time of discharge the patient was having perception of light (PL+).  He was given the treatment summary and Ophthalmic Report.  The 2^nd opposite party in the affidavit filed by her submitted that all curative steps taken by the doctors of the 1^st opposite party – Hospital and that there was no negligence or lapses on the part of the doctors or staff and that the doctors of the 1^st opposite party – Hospital had treated the complainant to the best of their ability but failed due to various reasons including the carelessness of the complainant.  It is evident that nowhere in the X1 medical reports it was mentioned that there was carelessness on the part of the complainant.  The complainant on the other hand alleged that the junior doctors were engaged to check the patient for their study purposes.  The facts of the case revealed that the 1^st corneal replacement was done on 09.03.2012.  It was a failure.  Therefore re-grafting was done on 11.05.2012.  It should have been done with utmost care and it was during the 2^nd surgery the 2^nd opposite party left the operation theatre without completing the corneal stitching and the corneal stitching was completed by junior doctor Dr.Seema in the unit headed by the 2^nd opposite party.  The 2^nd surgery was also a failure and the 3^rd corneal replacement was done on 17.05.2012 by the 2^nd opposite party – doctor and thereafter the 2^nd opposite party checked the left eye only on 23.05.2012 ie., on 18^th, 19^th, 20^th, 21^st and 22^nd junior doctors were entrusted with the post operative checkups.  Post operative check ups are to be done in detail in this type of surgery and post operative check ups are as challenging as the operation itself as revealed by the medical literature submitted by the opposite parties.  The 2^nd opposite party – doctor checked the left eye 5 days after the 3^rd surgery to find that there was an yellow colour in the left eye.  Medical negligence on the part of the 2^nd opposite party is thus very evident and her deposition that the condition of the left eye was good after the 3^rd surgery is without making a checkup for the immediate 5 days after the third operation on 17.05.2012.  She has disowned Exbt. A7 statement and the patient was discharged on his request on 25.05.2012 and he got admitted himself in the Aravind Hospital Maduri, TN on 28.05.2012.  The infection was cured within 15 days on administering the eye drops.  But he was informed on 05.07.2012 that the scope for another corneal grafting is remote due to the repeated and careless corneal stitching made by the 2^nd opposite party.  The 2^nd opposite party deposed before this Forum that corneal stitching or Keratoplastycan be done upto 10 times.  In the instant case a 4^th corneal surgery is made impossible due to negligent and careless corneal stitching made by the 2^nd opposite party – doctor and by the junior doctor in her group for which the 2^nd opposite party being the head of the unit is responsible and liable to compensate the complainant. Thus the left eye sight of the complainant was lost and the complainant also lost his income from his job.  The condition of the left eye was very bad as on 16.05.2012 as revealed by page 39 of X1 report as the Anterior chamber was full of exudates, there was graft edema with several extension of infection.  The above fact was admitted by the 2^nd opposite party (see page 8 of her deposition) and emergency operation was necessitated and was done 17.05.2012 but on that day corneal stitching was not completed by the 2^nd opposite party.  Last few stitches were in the absence of the 2^nd opposite party – Doctor.  While completing the corneal stitching Dr.Seema and the nurse were taking about their private matters and the complainant heard Dr.Seema saying that the cornea was ruptured. We find there is deficiency in service on the part of the 2^nd opposite party in leaving the operation theatre before completing the corneal stitching. Being the head of the unit the 2^nd opposite party is liable to compensate the complainant for the same.  Moreover, she had not checked up the left eye for the immediate 5 days after the surgery done on 17.05.2012 and page 29 of Exbt. X1 records and the ophthalmic report filed at pages 53 to 54 of Exbt. X1 revealed that 21 sutures were intact and 4 sutures loose as on 25.05.2012 and the anterior chamber was irregular and there was stromal edema, scleral necrosis and Exbt. A7 report under the letter head of the 1^st opposite party -hospital given by the 2^nd opposite party revealed the bad condition of the complainant on the date discharge of the patient on 25.05.2012.  According to the medical literature produced by the opposite parties, post operative management of a Therapeutic Keratoplasty is often as challenging as the operation and anti infections therapy should be maintained until the corneal epithelium has healed.  There is no such report in the Exbt. X1 medical reports.  Therapeutic Keratoplasty was done on 09.03.2012, 11.05.2012 and on 17.05.2012.  The 2^nd opposite party had not cared to give any meticulous post operative monitoring and she has not even cared to check the left eye on the subsequent 5 days after the 3^rd operation conducted on 17.05.2012 ie., it was after 5 days she checked the left eye of the complainant by the time the condition of left eye had deteriorated with exudates from the anterior chamber of the left eye.  Had she meticulously verified the condition of the left eye on the immediate five days after the Keratoplasty, the condition of the left eye would not have been deteriorated.  Leaving the operation theatre, after the 2^nd surgery, before completing the corneal stitching shows the deficient service given to the patient and the 4 sutures done by the 2^nd opposite party or by the junior doctor of the unit were found loose.   It proves negligence on the 2^nd opposite party when the 1^st surgery was done since the cornea stitched was infected due to infiltration through the gap near the corneal graft.  Thus this is a clear case of medical negligence in not doing all the corneal stitching intact and is not meticulously examining the details of the medical condition of the patient.  The medical literature produced by the opposite parties shows that regardless of graft clarity, anatomical success or infection eradication, surgical results are worse for patient with fungal keratits. The ophthalmic report given by the 2^nd opposite party at page 3 of the X1 Medical records revealed that the fungus in culture species not identified, the graft also showed signs of infiltration.  So at a later stage of the treatment the 2^nd opposite party did not take any urgent steps to identify the fungus and to treat accordingly.  Thus, in the instant case the complainant has proved both medical negligence and deficiency in service on the part of the opposite parties and the 1^st issue is decided in favour of the complainant. Considering all the facts, circumstances of the case and the medical report, we find that the complainant is entitled to get Rs.1,00,000/- (Rupees one lakh rupees) from the opposite parties for the medical negligence and deficiency in service on the part of the opposite parties and for the mental agony suffered by the complainant.

9)      Issue No. (iv)

          In the facts and circumstances of the case, we find that the complainant is entitled to get back the medical expenses incurred by the complainant.  The complainant vide Exbt. A8 series produced medical bills for Rs.14,673.73 only.  The opposite parties shall refund Rs.14,673-73 towards expenses proved by the medical bills furnished before this Forum.

10)    The complainant had incurred the costs of the proceedings to contest the case before this Forum.  We find that the complainant is entitled to get the costs which we fix at Rs.10,000/-

          In the result the complaint is allowed and we direct as follows:

1. The opposite parties shall pay Rs. 1,00,000/- towards compensation for the negligence, deficiency in service and for the mental agony suffered by the complainant.  
2. The opposite parties shall also refund the medical expenses incurred of Rs.14,673.73/- as proved by the medical bills furnished before this Forum.
3. The opposite parties shall also pay Rs.10,000/- towards the costs of the proceedings.
4. The liability of the opposite parties shall be joint and several.

The above orders shall be complied with, within 30 days from the date of receipt of a copy of this order, failing which the above amounts, except costs, shall carry interest at the rate of 12% p.a from the 31^st day of the receipt of this order till the date of realization.

Pronounced in the open Forum on this the 31^st day of May 2017                                                                    

Sd/-Beena Kumari V.K., Member

Sd/-Cherian K. Kuriakose, President

Sd/-Sheen Jose, Member

Forwarded by Order

Senior Superintendent

Date of Despatch

                             By Hand    ::

                             By post      ::

                                                          APPENDIX

Complainants Exhibits

Opposite party's Exhibits:    Nil

Depositions:      

                   DW1                    :        Dr.Aneeta Jabbar

                                         …................