Punjab

StateCommission

A/11/1818

Everest Sandhu - Complainant(s)

Versus

The Salvation Army Mc. Robert Hospital - Opp.Party(s)

Amandeep Singh Manaise

27 Apr 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1818 OF 2011

 

                                                          Date of Institution: 13.12.2011  

                                                          Date of Decision : 27.04.2015

 

Everest Sandhu S/o Benjazmin Francis resident of Village Fareeza Nagar, PO Dhariwal, Tehsil and District Gurdaspur.                                                                                                                                                                                                                    …..Appellant/Complainant

         

                                      Versus

 

1.       The Salvation Army M.c Robert Hospital, Near Railway Station Dhariwal, Tehsil and District Gurdaspur through its Administrator.

 

2.       Dr. Subhash Lazers Incharge Eye Department, The Salvation Army     Mc Robert Hospital, Near Railway Station Dhariwal, Tehsil and    District Gurdaspur.

                                                          …..Respondents/Opposite Parties

 

         

First Appeal against order dated 12.09.2011 passed by the District Consumer Disputes Redressal Forum, Gurdaspur

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member

          Shri Harcaran Singh Guram, Member

 

Present:-

 

          For the appellant                       :         Sh.R.K.Manaise, Advocate

          For the respondent          :         Sh.Samuel Gill, Advocate

.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), assailing order dated 12.09.2011 of District Consumer Disputes Redressal Forum Gurdaspur, dismissing the complaint of the complainant, now appellant in this appeal.  The instant appeal has been preferred against the same by the appellant.

2.      The complainant Everest Sandhu has filed this complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he suspected cataract in his left eye and approached the OPs on 08.10.2009 and file was prepared bearing no.44134 dated 08.10.2009 in the hospital of OP No.1. OP No.2 told the complainant regarding, white cataract in his left eye and operation was the only solution therefor. The complainant deposited Rs.2520/- along with other amount of Rs.230/- with the OPs for operation of white cataract in his left eye and date of operation was given as 17.03.2010 by OP No.2/ the Eye Surgeon. On 17.03.2010, injection was administered in his left eye in a wrongful and negligent manner causing swelling therein. The matter was brought to the notice of OP No.2 with regard to acute pain borne by the complainant in his left eye, OP No.2 just ignored it and installed a lens in the left eye of the complainant and sent him to home thereafter. The complainant when complained to OP No.2 that light had not appeared in his left eye and OP No.2 advised him to have some rest, so that inflammation in the left eye should disappear. The complainant approached the eye specialist of Civil Hospital Gurdaspur on 29.05.2010 and he apprised him that operation has been conducted in left eye of complainant for removal of cataract in a wrongful manner. The complainant has rather suffered the complications therewith. The complainant approached the Ops to pay the compensation of Rs. 2 lac, but to no effect. The complainant has, thus, filed the complaint against OPs after serving legal notice dated 2.7.2010, claiming compensation of Rs. 2 lac from the OPs regarding wrongful cataract operation in his left eye, besides costs of  litigation of Rs.3000/-.

3.      Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in the preliminary objections that complaint is not maintainable. The complex matter is involved in this case, which cannot be adjudicated in the summary proceedings. It was further averred in the written reply that expert evidence is required  to throw light on the point in dispute in this case. On merits, the complaint was also contested by the OPs. It was averred that complainant is not medically qualified nor has any registration in his name nor he is a medical practitioner. This fact was admitted by OPs that operation was conducted in left eye of the complainant for removal of cataract on 08.10.2009 after his thorough check up. The complainant visited the OPs Hospital for minor ailment on 08.10.2009 in his left eye and  white cataract was detected therein. His left eye vision was LP.LP & PL meaning perception of light only. OP No.2 recorded the findings on file bearing No.44134 dated 08.10.2009 in this regard. OP No.2 was flabbergasted to find the cataract in the left eye of the complainant in his 38 years of age only. The complainant referred to some old file of his treatment history of the eye. OP No.2 gave a note on the file saying, "to see old file". The complainant never tried to show the old file to OP No.2/Eye Surgeon. On 01.03.2010, the complainant came to OP No.2 for the removal of cataract in his left eye and to put lens therein. OP No.2 explained the prognosis thereof to the complainant. In view of his suspected treatment history, his age and mature cataract, the complainant was given a guarded prognosis, which means  that outcome of the operation is doubtful. A note saying "PCIOL-LE under GP" was put on his file as well, meaning thereby "Posterior Chamber Intraocular lens left eye under guarded prognosis". On 17.03.2010 OP No.2 injected the injection in his left eye in a diligent manner and removal of cataract was uneventful. OPs denied this fact vehemently that there was any pain in his left eye with injection or it caused swelling in his left eye. After removal of the cataract, OP No.2 noticed that milky glow in the eye instead of bright orange glow. OP No.2 recorded this fact through the floor Assistant. The complainant was fully aware of bad condition of his eye and this was duly explained to him as well. The dressing was opened on 18.03.2010 and vision of the complainant was, as before the operation that is perception of light. Since eye was fresh from operation of the complainant and there was a membrane blocking the view, retina was not visible at that moment. The membrane dissolved by the third day i.e. 20.03.2010. The retina was examined and a diagnosis of "retinal detachment" i.e RD was made, which was recorded on the file. The complainant was suggested to visit a retina specialist, but he never visited, as advised. The complainant was advised to continue putting the routine eye medicine in the operated eye. There was no need to give any painkiller to the complainant. OP No.2 is a qualified Eye Surgeon holding M.S Degree in Ophtamology from Punjab University. It was denied by OPs that complainant suffered from hypertension or pain in his left eye with the above operation. The OPs denied any medical negligence in this case and, thus,  prayed for dismissal of the complaint.

4.      The complainant tendered in evidence the affidavit of complainant Ex.CW-1/A, copy of legal notice dated 2.7.2010 Ex.C-2, postal receipts Ex.C-3 to Ex.C-4, bills Ex.C-5 to Ex.C-9.  As against it, OPs tendered in evidence affidavit of Major Jeeva Ratnam, Hospital Administrator Ex.RW-1, affidavit of Subash S. Lazarus, Eye Surgeon Ex.RW-2, copy of patient file Ex.R-1, copy of Master of Surgery of Subhash Samson, copy of appointment letter of OP No.2 Ex.R-3, copy of Certificate of Registration of OP No.2,  copy of certificate of Incorporation Ex.R-5, copy of licence Ex.R-6, copy of memorandum of association Ex.R-7, copy of case summary Ex.R-8, copy of report Ex.R-9. On conclusion of evidence and arguments, the District Forum Amritsar Gurdaspur, dismissed the complaint of the complainant by virtue of order dated 12.09.2011. Dissatisfied with the order of the District Forum, Gurdaspur 12.09.2011, the complainant now appellant has preferred this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the record of the case as well.  

6.      We are called upon to determine this point in this case as to whether there is any medical negligence on the part of OPs, while removing the cataract from the left eye of complainant on the above date. We have carefully examined the complainant's version and written version of OPs on the record. The affidavit of complainant Ex.CW-1/A is on the record in support of his averments. Ex.C-3 and Ex.C-4 are postal receipts, Ex.C-2 is legal notice served upon OPs by the complainant. We have also examined the material evidence on the record to determine this fact as to whether there has been any medical negligence in this case or not. Affidavit of Major Jeeva Ratnam, Hospital Administrator of OP No.1 is Ex.RW-1 has also been considered by us on the record. Similarly, affidavit of OP No.2 is treating Eye Surgeon Ex.RW-2 has also been examined by us on the record. From perusal of the medical report Ex.R-1 coupled with report of the expert Dr. Rajbir Medical Director to whom the matter was referred by District Forum for medical opinion, we find that the cataract of left eye of the complainant was quite mature at the time of operation. OP No.2 removed the cataract and put the lens in its place. Before operation of the complainant, OP No.2 recorded the case of the complainant as "guarded prognosis", which means that outcome of the operation is doubtful. A note saying "PCIOL-LE under GP" was put on his file. This means, "Posterior Chamber intraocular lens left eye under guarded prognosis." The patient file is Ex.R-1 as maintained by OP No.1. The complainant stated that there was swelling in his left eye with the injection, but this fact has been stoutly controverted by OPs in their respective pleadings and affidavits on the record. There is no other evidence other than the bald statement of the complainant to this effect, which stands rebutted by the contrary evidence of the OPs on the record. From the medical record as well as affidavit of OP No.2 on the record, we find that on 17.03.2010 cataract of complainant was uneventful. OP No.2 noticed that milky glow in the eye instead of bright orange glow of complainant. He made note through floor Assistant  to this effect.  OP No.2 stated that complainant was already aware about the bad condition of his eye. The dressing was opened on 18.03.2010 and vision of the complainant was same as before the operation i.e. perception of light. OP No.2 further stated  in his affidavit that complainant's eye was fresh from operation and there was a membrane blocking the view and retina was not visible at that moment. The membrane dissolved by the third day i.e 20.03.2010. The retina was examined and a diagnosis  of retina detachment i.e RD was made. A note saying "LE RD" was put on the file, which indicates that "left eye retinal detachment". OP No.2 is a qualified Eye Surgeon and holds a degree in this regard from Punjab University Chandigarh, vide Ex.R-2. As per letter Ex.R-3 and medical registration certificate Ex.R-4, he has fifteen years experience as Eye Surgeon. He further stated that no medical negligence whatsoever has been involved in this case on the part of OPs. The case of OPs is that there was only perception of light. Even prior to operation of the complainant and vision of the complainant did not improve due to retinal detachment of the left eye, which is not connected with the cataract operation. The submission of counsel for the OPs is that the problem of the complainant was on account of retinal detachment and not on account of cataract operation. There was light perception in the left eye of the complainant due to retinal detachment of the complainant only. Even notes to this effect are recorded on the file of the complainant, vide Ex.R-1. The District Forum referred the complainant for expert opinion to Dr. Rajbir Singh Medical Director during the pendency of proceedings and his case history Ex.R-8 is on the record. He recorded the case summary of complainant as under :

          "His visual acuity was 6/18 J6 in the right eye. We could not    assess his best-corrected visual acuity in the right eye because      he refused examination of the right eye. Vision in the left eye     was PL -ve (no light perception). Anterior segment examination        of the right eye was unremarkable and the left eye was pseudophakic with a well centered intraocular lens with some       posterior capsular opacification. Pupillary reaction of right eye        was good and left eye was sluggish. His intraocular pressure    was 20 mm Hg in the left eye. He did not allow tension check in the right eye.

          Right eye - Fundus examination refused.

          Fundus examination of the left eye showed a total retinal         detachment with funnel shape configuration with breaks          supero-nasaly and infero-temporally.

          No treatment was suggested of left eye as he had no light       perception. But he was advised to have VEP (Visually Evoked   Potential) in the left eye."

7.      From perusal of the case summary by the expert witness as well as evidence of the OPs which remained un-rebutted on the record, we find that cataract of the complainant was mature in the left eye and retinal detachment was not possible to be seen on account of over-opaqueness of the cataract. The vision of the complainant in this case did not improve  on account of retinal detachment of his left eye and not on account of his above cataract operation. Consequently,  OP No.2, who is a qualified Eye Surgeon cannot be held medically negligent for it. The Apex Court has also  examined this point in Jacob Mathew Vs. State of Punjab & Anr., reported in 2005(3)CPJ (SC) 9 and observed that "an error of judgment on the part of professional  is not negligence per se. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake.  A surgeon with shaky hands under fear of legal action cannot perform a successful operation. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure  which the accused followed."

8.      From appraisal of above referred evidence on the record and hearing the submissions of the parties, we find that complainant was neither a diabetic patient nor patient of hypertension. The counsel for the complainant now appellant is unable to point before us during the arguments as to on what point the treating doctor of OP No.1 was medically negligent. OP No.2 followed the standard medical practice for removal of cataract in left eye of the complainant. OP No.2 is a qualified eye surgeon with the requisite experience. The problem was faced by the complainant due to retinal detachment of his left eye, which was independent of cataract operation conducted by OP No.2. Consequently, the District Forum correctly observed that complainant has failed to prove any medical negligence on the part of the OPs in this case. The complainant was specifically suggested to visit Eye Specialist, but he never visited. No need of painkiller to the complainant ever arose. Even before the Eye Specialist Dr. Rajbir Singh, complainant refused for right eye examination. It is recorded in case summary Ex.R-8 by the expert witness Dr. Rajbir Singh, Medical Director of Eye Faculty that fundus examination of the left eye showed a total retinal detachment with funnel shape configuration with breaks supero-nasaly and infero-temporally. No treatment was suggested, as there was no light perception, but problem of the complainant was due to the detachment of retina in the left eye and not on account of cataract operation. Consequently, we find no legal infirmity in the order of the District Forum calling for any interference therein in this appeal.

9.      As a result of our above discussion, we affirm the order of the District Forum dated 12.09.2011, under challenge in this case, dismissing the complaint of the complainant  and resultantly the appeal filed by the appellant is ordered to be dismissed.

10.    Arguments in this appeal were heard on 23.04.2015 and the order was reserved. Now the order be communicated to the parties.

11     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                 (VINOD KUMAR GUPTA)

                                                                             MEMBER

 

 

                                                          (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

April 27,  2015.                                                              

(ravi)