Order-21.
Date-13/05/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant obtained Individual Mediclaim Policy from the OP1and that policy was issued to the complainant by the OP1 within the jurisdiction of the Ld. Forum and OP4 is the TPA that is Third Party Administrator of the OP1 and complainant s a consumer under the OP as service provider being policy No.030606/48/09/20/00007220 covering the risk of Rs.3 lakhs for the period 31-03-2010 to mid night of 30-03-2011.
During subsistence of the mediclaim policy the complainant had some problem in his eye and he contacted Dr. Zahir Abbas of Suryodaya Eye Centre of Calcutta Medical Research Institute and it was diagnosed that the complainant was suffering from Choroidal Neovascular Membrane in his left eye and Dr. Zahir Abbas advised him intra-vitreal injection Lucentis and for administering the said injection the admission was vital and as per advice of Dr. Abbas complainant was admitted to the said hospital on 07-08-2010, 16-03-2010 and 30-09-2010 and on which dates three doses of intra vitreal injection Lucentis were administered in the left eye of the complainant and he was discharged on the same day on each occasions and after administering the first dose on 07-08-2010 in course of follow up, test was done on 06-09-2010 what revealed persistence of subratinal fluid and so, advice was given on 13-09-2010 for further dose of Lucentis. Accordingly, complainant had undergone second dose of intra-vitreal injection Lucentis and as improvement was not upto expectation even after two doses the complainant was advised to 3rd dose and accordingly further dose was administered on 30-10-2010 and on the three occasions complainant was kept under observation but he is not comfortable with the repeated surgical procedure and was looking for an easy, better option and thereafter, he was examined by renowned Dr. T.P. Das of L.V. Prasad Eye Institute, Bhubaneswar, but he could not find any better solution then advising additional injection Lucentis and as per further advice of Doctor complainant was again admitted at the CMRI on 18-12-2010, 20-01-2011 and 19-02-2011 where three more Lucentis were administered in the left eye and he was discharged on the same day on each occasion and thereafter complainant submitted six claims of Rs.2,78,880/- to the OP4 the TPA of the Insurance Company. OP4 received the claims from the complainant vide Claim No.MDI 0690140, MDI 0785504, MDI 0843478, MDI 0762508, MDI 0889714 and MDI 918678.
OP4 processed the claims and subsequently they repudiated the first four claims of the complainant and reason given by the OP4 for such repudiation was that the patient underwent intravitreal injection Lucentis which does not support the need of hospitalization, hence claim is not payable and as per policy terms and conditions claim is not payable under clause no.1 but other two claims of the complainant were also repudiated by the OP 4 on the same ground which the complainant came to know from the website of the OP4. Then complainant wrote a letter to the OP3 requesting them to review the course of action taken by the OP4 by repudiating the claim of the complainant but there was no response from the OP so, complainant again submitted the complaint to the OP2 against the illegal repudiation but the OP2 by their letter dated 11-02-2011 mechanically confirmed the decision by the OP4 in respect of the repudiation.
Being aggrieved complainant filed a complaint to the Ombudsman for redressal of his grievance seeking reimbursement of his claim of Rs.2,78,776/- along with interest and it was also submitted by the OP Insurance Company to the Ombudsman that treatment by injection Lucentis is an OPD procedure and not covered under mediclaim policy and based on the above internal circular of the Head Office they repudiated the claim. But such sort of circular was never communicated to the complainant nor the treatment of injection Lucentis excluded the policy issued to the complainant.
But the Ombudsman authority directed the OP to pay ex gratia payment and directed the insurance company for above ex gratia amount but the award as passed by the Ombudsman was erroneous and biased for which the complainant has filed this complaint for adopting illegal and unfair trade practice and prayed for redressal.
On the other hand, OP by filing written statement submitted that the dispute of the claim of the complainant had alredy been decided by the Insurance Ombudsman when the complainant approached the Ombudsman he must have to enjoy the said award but complainant against that Ombudsman’s order never preferred any appeal in proper Forum so the present complaint is not maintainable. It is further submitted that Lucentis is not surgical procedure but OPD procedure and necessary hospitalization cannot be determined without any proper adjudication by the Civil Court. Moreover, complainant’s claim Rs.6,78,886/- for a dispute of Rs.2,78,880/- which proves that the complainant is much greedy and trying to catch fish out of troubled water. Fact remains there is no deficiency of service or illegal repudiation on the part of the OP it was repudiated by TPA and otherwise accepted by the OP for which the present compliant is not maintainable.
Decision with Reasons
On proper consideration of the mediclaim policy including the complaint, written version and argument as advanced by the Ld. Lawyers of both the parties we are confirmed that policy No. 030606/48/09/20/00007220 covering the risk period from 31-03-2010 to 30-03-2011. Admitted fact is that on 07-08-2010, 16-09-2010 and 30-10-2010 complainant was administered with intra-vitreal injection Lucentis by Dr. Zahir Abbas of CMRI. Subsequently, on 18-12-2010, 20-01-2011 and 19-02-2011 complainant was further administered in the left eye, similar doses of Lucentis at CMRI and in each case bill was of Rs.55,000/- to Rs.57,000/- etc and in all cases operation theatre charges was charged at the rateRs.55,000/- but in fact no operation was done and in the bills there is no mention what type of operation was done but only it is noted that Lucentis injection was administered.
Fact remains as per policy condition if any patient is admitted to any Nursing Home or Private Hospital or anywhere and if the treatment is not continued less than 24 hours in that case as per policy condition it shall not be treated as hospitalization for more than 24 hours and truth is that parties are guided by the terms and condition of the policy and in the policy it is specifically mentioned that this policy is applicable in case of stay in a hospital for not less than 24 hours but after considering the discharge certificate it is found that for the purpose of administering Lucentis injection only he was admitted and now, the question is whether it was a surgical operation. In this regard, we have gone through the world famous book wherefrom it is found that it is nothing but intravitreal injection and when the widespread use of intravitreal injections, there has been an increased interest regarding the best application technique. Clinical experience with intravitreal injection has provided physicians with an outline of avoidable risks and only procedure is that all injection should be performed under sterile condition and as per world famous book it is found this type of injection is given in conventional examining rooms under sterile conditions.
Before giving injection for disinfection of skin to reducing the risk of infectious endophthalmitis is required and at the same time eyelashes and conjunctiva thereafter eyelids and lashes are usually disinfected with a povidone iodine scrub. A sterile speculum is placed between the lids. Various methods of applying providone-iodine are also taken. So, considering the world famous journal regarding step for an intravitreal injection technique it is found that conventional step under examining room under sterile condition is sufficient for giving injection. For the sake of the argument if it is accepted that operation room is a sterile for which the injection was given for that reason it cannot be said that fully operation theatre was used but fact remains now-a-days the private hospital have taken such a step for earning huge amount of part Rs.55,000/- for giving such injection for using such operation room but whole operation room is not required only sterile room is required. In America and other countries conventional examining room under sterile condition are used but in the present case the doctor used the operation theatre only on the ground that operation theatre is a sterile room but no operation was done. No doubt it is injection on the eye but only step to step shall be taken for disinfection of the second eye lash and conjunctiva that means the atmosphere shall be in sterile condition and that is the precaution for injection procedure and recommended technique and to give such injection and before administering such injection the mandatory routine work is to take proper step for dis-infection and sterile condition of the area and in fact the Lucentis is generally injected into vitrious cavity. So, in so many words it cannot be stated that it is a surgery.
So, for mere use of sterile room like operation theatre admission is not required at best in sterile room of the Nursing Home that injection can easily be made and that is in the eye treatment room of the hospital. Whatever it may be, it is fact that parties cannot go beyond the terms and condition of the policy and truth is that it is individual mediclaim policy and hospitalization for more than 24 hours and surgical operation or operative procedure for giving of deformities defects repaired of injuries diagnosis or cure of disease relief of suffering and prolonged of life shall be there but in the present case surgical operation is not there. So, as per policy complainant is not entitled to any hospitalization benefit and no doubt that was not given by the OP which was no doubt as per terms and condition of the policy.
Further it is found from that journal that the present diseases was in existence prior to purchasing the policy and the complainant suffered from choraidal neo vascular membrane and fact remains complainant suppressing this fact purchasing this policy. It is also evident from the Clause that it is not eye surgery and as per Clause 2/2, 2/3 complainant is not entitled to any benefit and in definition of eye surgery administering of Lucentis does not cover but steps for such intravitreal technique is required for administering that injection in the eye. Anyhow, it is also found that all over the world this injection is sold by three companies namely Pfizer, Novartis and Glaxo-Smithkline and no doubt complainant purchased that injection from Novartis at a price of Rs.58,000/- etc. Truth is that within the present period of validity of the policy for the period from 31-03-2010 to 30-03-2011 complainant took those injections on 07-08-2010, 16-09-2010, 30-10-2010 and thereafter, on 18-12-2010, 20-01-2011 and 19-02-2011 and thereafter, the policy expired on 30-03-2011. Considering that fact it is clear that complainant only for the purpose of getting benefit of purchasing this injection and for cost of administering the injection purchased this policy. Considering that fact he had been suffering from pre-existing disease of eye which is generally caused for retinal fluid occlusion. Whatever it may be it is fact that complainant purchased a policy of Rs.1,75,000/- and bonus of Rs.47,5000/- and at that time he was aged about 69 years.
After studying the total medical science in respect of the intravitreal injection Lucentis it is clear that the present eye problem of the complainant was pre-existing in view of the fact it is age related de-generation of the eye. But complainant suppressing that fact took the policy and in fact no eye surgery was done only the injection was administered for which sterile room operation theatre was used by the doctor. Another fact is that for administering injection it requires only half hour so, it is proved that half an hour was used by the doctor for administering the injection so, stay of the complainant in the hospital at that date was for only one hour or two hours so as per policy condition he is not entitled to any benefit of mediclaim.
Considering the entire facts and materials and also considering the administering of the said injection to his eye and purchase of the same by the complainant for the purpose of taking such injection we are of the view that OP considered all the documents filed by the complainant for the cost of the medicines, drugs which were purchased for administering the injection. Truth is that for each injection he spent about Rs.58,000/- and if it would be administered in conventional form in a sterile room in that case complainant ought to have get 50 percent of the total insured amount but not the entire unused amount. Truth is that in fact the policy sum insured with bonus total sum insured is Rs.2,22,500/- but complainant has claimed Rs.2,78,886/- against mediclaim policy and total claim is Rs.6,78,886/- and out of that complainant has claimed Rs.2,78,886/- as mediclaim but considering all the above facts and also considering the present complaint age and his condition as conventional treatment complainant may be granted 50 percent of the sum insured that means he is entitled to Rs.1,11,000/- for medicines, Rs.30,000/- for doctors fees and accordingly in total treating conventional treatment complainant is entitled to only Rs.1,41,000/- but it is being released by this Forum treating that treatment was conventional. So, this Forum has granted Rs.1,25,000/- that is 50 percent of the sum insured as cost of the medicine and Rs.30,000/- as doctor’s fees for 6 injections and accordingly we are directing the OP to pay Rs.1,41,000/- to the complainant by treating the claim as finally settled by this Forum but as because we are not found any negligence, deficiency or illegal act on the part of the OP as per contract and as because both the parties are governed by terms and conditions of the policy so, we are of course of view that the repudiation as per terms and condition of the policy was quite correct but as because we have taken a social approach treating such treatment as a conventional treatment and accordingly as per conventional treatment we have released this mediclaim amount to the complainant directing the OP to hand over the sum within one month from the date of this order even though some claims are time barred as per policy condition.
In the result, the case succeeds in part.
Hence,
Ordered
That the case be and the same is allowed on contest against the OPs1 to 3 with a cost of Rs.2,000/- and dismissed against OP4 without any cost.
OPs 1 to 3 are hereby directed to handover and to pay a sum of Rs.1,41,000/- as finally settled amount of the mediclaim amount treating that claim settlement by the OP to the complainant though repudiation is not accepted by the Forum as per terms of this order and it shall be paid within one month from the date of this order, failing which penal interest at the rateRs.200/- shall be assessed till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.
No other relief is give to the complainant on the ground that Forum has released this amount considering a social aspect and treating this treatment as conventional treatment.
If OPs 1 to 3 fail to comply the order in that case penal proceeding u/s.27/25 of C.P. Act shall be started against them.
