By Smt. C. S. Sulekha Beevi, President,

1. This is a complaint alleging medical negligence against opposite parties. The complainant who was suffering vision problem in his right eye due to cataract attended a medical camp conducted by opposite party hospital at M.E.S., Kalladi College, Mannarkkad. After examination at the camp the doctors advised him to come to the hospital for detailed check up. Examinations were conducted at opposite party hospital and the complainant was advised for cataract surgery by second opposite party doctor. On 28-4-2005 the complainant was admitted in opposite party hospital and surgery was done on the same day to his right eye. He was discharged the next day. Before discharge the bandage on the eye was removed but there was no vision to the eye. Opposite parties advised for rest and to take medicines. It is stated that opposite party doctors assured him that within one month he will regain clear vision. Though he followed the advise of doctors he did not get any relief after operation. That before operation he had partial vision in the right eye but after the operation the entire vision to the eye was lost. After one month complainant approached second opposite party doctor who advised to take medicines for a few more days. Since complainant did not regain vision in right eye he approached Little Flower Hospital, Angamali for further treatment. He was admitted and treated at this hospital from 04-7-2005 to 08-7-2005. That it was diagnosed that the reason for loss of eye sight was due to retinal detachment, which occurred at the time of cataract surgery conducted at opposite party hospital. From Little Flower Hospital complainant was advised to undergo another surgery which would cost Rs.14,000/-. Complainant then approached opposite parties and asked to pay the operation expenses. Opposite parties refused to pay the amount and told that they will conduct the operation that was advised at Little Flower Hospital. Since complainant being financially poor had no other option but to accept the advice and offer of opposite parties. So he was again admitted at opposite party hospital on 02-9-2005 and surgery was conducted on the same day. He was discharged on 07-9-2005. After surgery doctors told him that the surgery was a success and that he will get back his eye sight. But the sight to right eye showed no progress. Second operation conducted at opposite party hospital was utter failure. Complainant did not get back the eye sight to his right eye and the various doctors he had consulted opined that the loss of eye-sight was due to defect of operation and that there is no possibility of getting back sight to the right eye. That complainant was working as an Estate Manager and earning Rs.4,500/- per month. Due to loss of sight to the eye he is unable to do any work and is now dependant on his daughter. That complainant lost vision of right eye due to gross negligence on the part of opposite parties. Due care and caution was not taken in surgery and treatment. Complainant issued a registered lawyer notice on 23-12-2005 claiming compensation of Rs.2,00,000/-. Opposite parties send reply raising false contentions. Hence this complaint praying for Rs.2,00,000/- as compensation with costs.

2. Both opposite parties filed a combined version. Opposite parties disputed the complainant to be a consumer raising the contention that the medical service rendered to the complainant was free of charge and therefore he would not fall within the definition of consumer. It is submitted that the complainant attended a free medical check up camp conducted at M.E.S. Kalladi College, Mannarkad. That opposite party is having a charitable trust to help poor patients selected from such free medical camps. That complainant was selected for surgery from the free medical camp and he availed free treatment offered by opposite parties at opposite party hospital. That complainant has not paid any money for treatment, and that on this ground he is not a consumer and the complaint is not maintainable. The hospital is well equipped with high tech machineries and has qualified doctors and nurses. The complainant was suffering from cataract to his right eye and attended the free medical camp. After check up opposite party doctors advised him to undergo operation to remove cataract. The complainant came to the hospital on 21-3-2005 and he was examined with high tech machines before surgery. The right vision was found as 6/60. The treatment fixed was cataract surgery with 10L. The operation date was fixed as 19-4-2005 which was to be done free of cost. He was hypertensive also. On 21-4-2005 the complainant came to the hospital and he was admitted for the surgery. When he was taken to theatre, the complainant on entering into the theatre refused to co-operate with the hospital staff, stating that he was afraid. He was discharged and directed to come when he is mentally fit to face the surgery. On 22-4-2005 he came to the hospital and requested for surgery. The surgery was fixed on 28-4-2005. He then came to the hospital on 27-4-2005 and was admitted for surgery. On 28-4-2005 the dilation was done and the patient was shifted to operation theatre. The cataract was removed and 10L was inserted at the time of operation and the operation was successful. The complainant was discharged on 29-4-2005 with directions to use antibiotic with steroid eye drops. He was directed to review after a week.

3. On 06-5-2005 the complainant came for review and on examination it was found that the right vision had improved to 6/12. Complainant was advised to continue the same eye drops. On 16-5-2005 he came for review and on examination the patient was normal and he was advised to continue the same treatment. On 17-6-2005 the complainant came to the hospital saying that he is having pain. On detailed examination it was found that he had Retinal Detachment. His vision was 6/36 and he was referred to Vitreo-Retinal Surgeon. After fundus examination it was confirmed that he had Retinal Detachment, and needs immediate R D Surgery. Medicines were prescribed. Opposite party advised immediate R D Surgery because visual prognosis of the R D Surgery will be better if surgery is done immediately after the occurrence of R D. The complainant did not undergo the surgery. Instead he went to many hospitals for second opinion and they all have found that R D Surgery was the only option. Complainant spent months without doing surgery to correct retinal detachment. He then came to the hospital on 23-8-2005, willing to undergo R D Surgery. Complainant informed that all hospitals advised him for R D Surgery and that they demanded Rs.14,000/- as expenses for surgery. The first opposite party who is Chairman of the Charitable hospital considered the case of the complainant again though it had become a long standing total R.D. On 23-8-2005 the complainant was examined. To save the eye the R D Surgery should have been done on the onset itself. By this time months had elapsed and the risk was very high. He was explained about the very poor visual prognosis. The facts were brought to notice of complainant with informed consent. Opposite party agreed to do the surgery free of cost. Complainant told that he would come for surgery the next day itself. But he came only on 01-9-2005. On this day he was admitted for surgery and tests were done. The surgery was conducted on 02-9-2005. SB/PPV/PFCL/SOL/S1 under guarded visual prognosis and local anesthesia was done. The complainant was treated with medicines on 03-9-2005, 04-9-2005, 05-9-2005, 06-9-2005. He was discharged on 07-9-2005 and was asked to continue treatment till 20-9-2005. The case sheet will reveal the treatment given and procedures done. He was managed as per established norms of treatment. The allegations in the complaint that on 29-4-2005 the complainant was discharged and when the bandage of right eye was removed from hospital there was no vision to the eye is denied by opposite party as false. After operation the vision had improved and R D occurred only after 1½ months. That immediately after cataract surgery the vision had improved but later retina was detached. That R D can occur due to various reasons. It can occur in patients who have undergone surgery and those who have not undergone cataract surgery. The treatment for R D is immediate R D Surgery. But in this case the complainant came to the hospital only after 4 months of occurrence of R D. The complainant was very negligent in taking immediate treatment and thus has caused loss of vision. The curing process in treatment depends on various factors. The doctors have taken all the necessary care and there is no lapse on the part of doctor in performing the cataract operation. The other allegations have also been specifically denied by opposite parties. That there is no medical deficiency and that complainant is not entitled to any reliefs.

4. Evidence consists of the oral evidence of complainant who was examined as PW1. Exts.A1 to A11 marked for him. On the side of opposite parties the power of attorney holder of second opposite party was examined as DW1 and Ext.B1 marked for opposite parties.

5. Points for consideration:-

(i) Whether complainant is a consumer.

(ii) Whether opposite parties have committed any medical deficiency in service.

(iii) If so, reliefs and costs.

6. Point (i):-

Opposite parties have disputed the complainant to be a consumer raising the contention that the services to the complainant were rendered free of charge. Admittedly complainant has not paid any charges to opposite parties for the treatment availed by him. He attended the free medical camp conducted by opposite parties and was selected for the free cataract surgery conducted for poor patients at opposite party hospital. Though both the surgeries to the complainant were done free of charge, opposite party hospital collects charges from patients who can afford and pay. In other words opposite party hospital collects charges from patients who an afford to pay does not render services and to all patients free of charge. In Indian Medical Association Vs. V.P. Shantha & Others AIR 1996 SC 550 para 56(8) the Apex Court has settled the position wherein it was held that the service rendered at a hospital where charges are required to be paid by persons who are in a position to pay, and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression ’service’ as defined in Sec.2(1)(o) of the Act, irrespective of the fact that the service is rendered is free of charge to persons who are not in a position to pay for such services. The Hon’ble National Commission has also held in Pravat Kumar Mukkerjee Vs. Rubee General Hospital and Others 2005 CTJ 605 (CP) NCDRC that the status of emergency or critically ill patients would be the same as persons belonging to poor class who are provided service free of charge but in fact they are beneficiaries of the services hired or availed of by the paying class. Applying the principles laid in the above decisions we hold that complainant is a consumer. Point found in favour of complainant.

7. Point (ii):-

The allegations of medical negligence levelled against opposite parties is that due to negligence in conduct of cataract surgery, the complainant lost eye sight to his right eye. It is stated, though vaguely, that opposite parties did not conduct the second surgery, R D surgery also in a proper manner.

8. According to complainant his vision in the right eye suffered due to cataract problem. It is his case that opposite parties assured him that he would get clear vision after surgery with IOL implantation. He was admitted on 28-4-2005 in opposite party hospital and cataract surgery was conducted on the same day. He was discharged the next day. It is his contention that before discharging when the bandage was removed he noticed that the entire eye sight of the right eye was lost. Though he reported this to opposite party doctor, he was advised to take medicines and rest for one month. He was assured that the vision would be clear within this time. Complainant affirms that though he followed the instructions of opposite party he did not regain eyesight of the eye. So he approached Little Flower Hospital at Angamali, where he was admitted from 04-7-2005 to 08-7-2005. That from Little Flower Hospital (hereafter mentioned as Little Flower Hospital) the cause of loss of eyesight was diagnosed as retinal detachment. It is also submitted that the doctors opined that R D occurred at the time of cataract surgery done at opposite party hospital. From Little Flower Hospital he was advised to undergo R D Surgery and he was told that the expenses for the surgery would be Rs.14,000/-. Since he did not have money he approached opposite party hospital to pay the expenses for R D Surgery. That opposite parties refused to pay the amount but offered to do the R D Surgery at their hospital free of cost. Complainant was again admitted at opposite party hospital for R D Surgery which was done on 02-9-2005. He was discharged on 07-9-2005. He alleges that the second operation also was not conducted properly and resulted in total loss of eyesight to his right eye.

9. Opposite parties have admitted the conduct of cataract surgery and the occurrence of R D after the surgery. Denying medical deficiency opposite parties have raised two defenses (i) That retinal detachment can occur due to various reasons. It can occur in patients who have undergone surgery and those who have not. The loss of eyesight due to retinal detachment was not due to any negligence in conduct of cataract surgery. That the surgery and treatments were done with proper care. (ii) The complainant was negligent in adhering to the advices given by opposite party doctors. That he did not undergo immediate R D Surgery as advised by opposite party doctors. Instead he went to many doctors and hospitals taking second opinion and there was much delay to undergo R D Surgery. That the reason for not getting positive result after R D Surgery was the delay caused by the complainant himself.

10. On perusal of treatment records it is seen that the vision of right eye of the complainant prior to cataract surgery was 6/60. It is also noted that after cataract surgery on 06-5-2005 his vision is 6/12. This shows that the vision had improved after cataract surgery, but later due to retinal detachment the vision was lost. Though complainant alleges that this retinal detachment occurred due to negligence in conduct of cataract surgery there is no material placed before us by the complainant establishing his contention. Even while cross-examining DW1 there is no challenge made on behalf of complainant regarding the procedure of surgery. Complainant has not attributed any specific aspect as being wrongly done by opposite party doctor. The challenge raised in cross-examination were mainly regarding the up-keeping/maintenance of medical records/case sheet. We have perused Ext.B1 case sheet. We do not find anything to suspect the genuineness of Ext.B1 case sheet. Though each page is separate cards, DW1 has properly explained the reason for using such separate cards. It is his evidence that though the patient maybe admitted and treated as impatient, the patient will be taken to the out patient centre for eye examinations because the machines necessary for examination of the eye are kept at the out patient centre. So separate out patient cards are used as continuation and follow up treatment cards in the case sheet. This sufficiently explains the use of separate cards in Ext.B1 case sheet.

11. It is seen from Ext.B1 that on 17-6-2005 his vision was noted as 6/36. It is also seen stated on this day ’advised for R D Surgery.’ The evidence of DW1 in this regard is as under:

"As per Ext.B1 the Retinal Detachment was diagonised on 17-6-2005. Operation was advised on the same day. I did not give any date for surgery because the patient did not agree for surgery."

Ext.B1 along with the evidence of DW1 establishes that the eyesight of the complainant had improved after cataract surgery and had later diminished due to occurrence of R.D. It is also proved that complainant was advised to undergo immediate correction surgery to regain the vision. It was submitted on behalf of opposite parties that retina detachment did not occur due to any deficiency in conduct of operation, but that it occurred as a situation in medical science. There is no evidence placed by the complainant with the support of medical literature or expert opinion to establish that retinal detachment occurred as a result of negligence in conduct of cataract surgery. So the allegation of the complainant that retina detachment occurred due to the negligence is conduct of cataract surgery stands unestablished and unproved.

12. The second allegation is that the R.D. Surgery was not conducted with reasonable care and this resulted in not getting the desired result. Admittedly complainant has approached Little Flower Hospital prior to undergoing R D Surgery at opposite party hospital. Complainant has averred that he was treated at Little Flower Hospital from 04-7-2005 to 08-7-2005. But on perusal of Ext.A1 which is the case sheet of Little Flower Hospital it is brought to light that complainant was admitted on 04-7-2005 at Little Flower Hospital for undergoing R D Surgery. Prior to that he has taken consultations from doctors of this hospital. It is seen from Ext.A1 records that after fixing the date of operation at 08-7-2005, pre operative check ups and preanesthetic check ups were done. It is noted that ’patient not willing for surgery’ and is seen discharged on 08-7-2005. On 18-8-2005 the complainant has consulted Dr. Lucy Tobih at Mannarkkad. It is evident from the materials placed before us that prior to the R D Surgery conducted at opposite party hospital the complainant had availed treatment under various doctors and hospitals. In our view when the patient was not strictly through out under the care and follow up treatment of opposite party doctors he cannot later turn around and blame the opposite party doctor to be negligent. It is submitted by opposite parties that the visual prognosis of R D Surgery will be better if done immediately and the delay has resulted in poor regain of vision. Again this has not been controverted by the complainant by adducing any medical expert opinion. We therefore have to accept the contentions put forward by opposite party in this regard. At the cost of repetition it has to be stated that there is no specific allegation of negligence in the conduct of R D Surgery, but only a vague statement that opposite parties conducted both the surgeries negligently.

13. From the above discussions, evidence and materials placed before us we are able to conclude that complainant has miserably failed to establish the case put forward in the complaint. We do not find any medical deficiency on the part of opposite parties. Point found against complainant.

14. In the result, the complaint fails and is dismissed. No order as to costs.

Dated this 13th day of January, 2010.

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN,

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1

PW1 : Gopalakrishnan Nair, Complainant.

Documents marked on the side of the complainant : Ext.A1 to A11

Ext.A1 : Photo copy of the Discharge Summary of complainant from first opposite party.

Ext.A2 : Photo copy of the Discharge Summary of complainant from Little Flower Hospital & Research Centre, Angamaly.

Ext.A3 : Photo copy of the certificate dated, 08-7 given by Dr. Thomas Cherian, Little Flower Hospital & Research Centre, Angamaly.-2005

Ext.A4 : Photo copy of the treatment card.

Ext.A5 : Photo copy of the treatment card from K.G. Eye Hospital, Coimbatore.

Ext.A6 : Photo copy of the registered with A/D lawyer notice dated. 23-12-2005 issued by complainant’s counsel to opposite parties.

Ext.A7 : Photo copy of the reply notice from first opposite party to complainant’s counsel.

Ext.A8 : Photo copy of the reply notice from first opposite party to complainant’s counsel

Ext.A9 : Prescriptions from first opposite party to complainant.

Ext.A10 : Letter dated, 11-8-2008 from Manager Administrative, Aravind Eye hospital,

Coimbatore to the President, Court of Consumer Redressal Forum, Malappuram.

Ext.A1 1 : Medical record of complainant from Little Flower Hospital and Research Centre, Angamaly.

Witness examined on the side of the opposite parties : DW1

DW1 : Dr. Safarulla, Assistant Medical Director of opposite party hospital.

Documents marked on the side of the opposite parties : Ext.B1

Ext.B1 : Patient Record from Al Salama Eye Hospital Ltd., Perintalmanna.

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN,

MEMBER E. AYISHAKUTTY, MEMBER