KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.135/2004 & 177/2004
COMMON JUDGMENT DATED: 06-08-2011
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
APPEAL NO.135/2004
Comtrust Eye Hospital,
Puthiyara, Kozhikode, : APPELLANT
Conducted by Comtrust Charitable-
Trust R/by its Managing Trustee.
(By Adv:Sri.Shyam Padman)
Vs.
1. V.Sirajudheen,
S/o Late Abdul Khader,
Valiyakath House,
Chuloor (PO), Valapad,
Trichur.
: RESPONDENTS
2. Dr.Sreekanth Karat,
Eye Surgeon, Comtrust Hospital,
Kozhikode.
APPEAL NO.177/2004
Dr.Sreekanth Karat,
Eye Surgeon, Comtrust Hospital, : APPELLANT
Kozhikode.
(By Adv:Sri.M.K.George)
Vs.
1. V.Sirajudheen,
S/o Late Abdul Khader,
Valiyakath House,
Chuloor (PO), Valapad,
Trichur.
: RESPONDENTS
2. Comtrust Eye Hospital,
Puthiyara, Kozhikode,
Conducted by Comtrust Charitable-
Trust R/by its Managing Trustee.
(By Adv:Sri.Shyam Padman)
COMMON JUDGMENT
JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT
The appellant in Appeal.134/04 is the 1st opposite party hospital and the appellant in A.177/04 is the 2nd opposite party doctor in OP.43/02 in the file of CDRF, Kozhikkode. The appellants are under orders to pay a sum of Rs.4.lakhs as compensation and Rs.1000/- as cost.
2. It is the case of the complainant that he experienced defective vision to his left eye and consulted the 2nd opposite party doctor on 22.5.2001. He was admitted in the 1st opposite party hospital on 28.5.2001 and on the same day itself cataract surgery to the left eye was done and discharged on the same day in the evening with bandage and advised to report on the next day for removal of the bandage. On the next day morning itself the complainant felt irritation and uneasiness on the left eye. The complainant reported the matter to the 2nd opposite party at his residence and was advised to come to the hospital on the next day morning and also advised rigorous treatment by applying drops every 5 minutes for 2 days. On 2.6.2001 he was referred to Giridhar Eye Institute at Kochi. The treatment rendered at Giridhar Eye Institute also did not improve the vision. From Giridhar Eye Institute he was referred to Sankara Nethralaya, Madras for 2nd opinion. Doctors at Sankara Nethralaya advised that there are no chances of regaining vision and that the eye may have to be replaced by prosthesis. Thereafter the complainant continued treatment at Giridhar Eye Institute. The complainant has lost vision of the left eye. He was working abroad in Saudi Arabia as marketing executive in the Company by name Rajab and Silsilah agency of Phillips Company and was having a salary of 4000. Saudi Riyals, which is approximately Rs.48,000/-. It is alleged that it was on account of the negligence of the opposite parties in conducting the cataract surgery that the present condition of the complainant took place. It is also stated that the silicon lens implanted was of poor quality although he had paid Rs.9500/- for the same. It is the carelessness on the part of the opposite parties that lead to infection and consequently loss of vision of the left eye. The complainant has claimed a sum of Rs.4,25,000/- as compensation as well as cost incurred for the treatment and travel amounting to around Rs.30,000/- with interest at 18%.
3. The opposite parties, hospital and eye surgeon have filed a joint version admitting that the complainant was seen by the 2nd opposite party at the hospital on 22/5/2001. He complained of defective vision to both eyes. He had undergone cataract surgery for the right eye from Aravind Eye Hospital, Coimbatore. Ocular examination showed best corrected vision 6/18, right eye and 6/60 left eye. He was not a diabetic and hypertensive and general examination was done to rule out any septic foci. The blood pressure etc was normal. He was advised that the defective vision of the right eye is due to posterior capsular opacification needing YAG laser capsulotomy and defective vision left eye is due to cataract needing cataract suregery. The procedure was explained in detail. Phaco emulsification with IOL implantation for left eye was to be done at first. Complainant was posted for cataract surgery of the left eye on 28.5.01 as a daycare case as is being done in the hospital on a routine basis and YAG capsulotomy right eye on 29.05.2001.
4. Preoperatively A-scan biometry was done to calculate the IOL power. Eye was prepared thoroughly and Xylocane test dose and injection Tetanus Toxoid was given. The complainant was advised Ofloxacin eye drops for 5 days and report at the hospital on 28.5.01 at 7.30 am after taking head bath. On 28.5.01 pre-operatively his pupil was dialated using tropicamide 1% eye drops, anti-inflamatory eye drops and antibiotic eye drops for 2 hours before surgery. Peribulbar anesthesia was given using xylocane 2% with adrenaline and hyluronidase. Surgery was done in the state of art operating theatre which has a UV lamp, and formalin aerosol was used for sterilization. The theatre instruments are sterilized using modern flash autoclaving method. The theatre has separate instruments for all paying cases. The theatre is equipped with Alcon universal II phacoemulsifer and vitrectomy unit. The manner in which the surgery was done is also explained in the version. It is mentioned that before surgery the eye lids and adenexia was painted with betadine lotion and antibiotic drops were instilled in the conjuctival sac and eye draped thoroughly. The IOL used was Allergan si40 foldable lens which is US FDA approved IOL. This IOL is used all over India and in most of the leading eye hospitals like Aravind Eye Hospital, Madurai, Sankara eye society Coimbatore, All India Institute of Medical Science Delhi etc. The complainant was kept in the day care post operative room. He was given Acetazolamide tablets and analgesics and discharged with proper advice. On the next day morning ie 29.5.01 the bandage was removed and eye examined under slit lamp and everything was found normal. Visual acuity was 6/12 in the left eye. The necessary post operative instructions were given with respect to the application of eye drops and was advised not to rub or contaminate the eye with water. The method of cleaning the eye was shown to the attender (bye-stander) and the attender was advised to cut the nails and wash the hand before cleaning and applying the eye drops. The complainant was given antibiotics and steroid eye drops and asked to come for review after one week. YAG posterior capsulotomy was done for the right eye and the patient was advised to apply eye drops to the right eye.
5. The complainant came to the 2nd opposite part’s residence in the same evening with pain and irritation to the left eye. On examination the lids were normal and there was moderate conjuctival congestion with clear cornea and well formed anterior chamber with moderate Iritis. Since this can happen following cataract surgery in some patients he was advised to apply eye drops more frequently and to come to hospital next day morning. He was examined on the next day at the hospital. The examination showed vision of 6/60 left eye with lid edema, congestion, shallow anterior chamber, marked Iritis, hazy cornea, IOL in position and fibrin membrane. The complainant was admitted and intensive steroid antibiotics (ceftazidime, tobramycin, wysolone and hydrocortisone) were given both topically and systemically. The eye was patched to allow the chamber to form. On 31.5.01 vision was 5/60 left eye, the iritis was responding to treatment and the anterior chamber was well formed but the fibrin membrane became dense due to posterior synchaie. There was no hypopyon. Fundus view was obscured due to the fibrin membrane. YAG membranectomy was tried but there was no response. On 01/06/2001 intensive mydriatic antibiotic and steroid therapy was continued under close monitoring. On that day pain has subsided and there was response to treatment. But the vision was poor due to corneal straie and the dense fibrin membrane. Since the condition was not showing any response and suspecting a vitritis the complainant was referred to Dr.Giridhar’s eye institute for vitreoretinal problem as there is proper vitreoretinal clinic in Calicut and Dr.Giridhar is a well known expert in this field having been trained at Sankara Nethralaya, Chennai. It is learnt that the complainant was examined at Dr.Giridhar’s vitreoretinal clinic on 2.6.01 and was diagnosed to have pseudophakic endophthalmitis. Vitreous biopsy and intravitreal antibiotics and steroids were given. The result of vitreous biopsy showed pseudomonas aeroginosa. Parsplanaviterctomy with debulking of vitreous cavity was done.
B-scan was done and it showed attached retina. Later the complainant was sent to Sankara Nethralaya, Chennai for 2nd opinion from where they were told that all the possible and appropriate treatment was given. Thereafter the complainant is under the care of Dr.Giridhar. The opposite parties have denied any negligence on their part in the surgery and treatment. The staff are all qualified and were trained at Aravind eye hospital, Coimbatore. As far as sterility checks cultures are taken from the wall floor, instrument trolley, microscope and sent to microbiology center, which is run by Dr.C.K.Jayaram Panikar, M.D, who was the former principal and head of the microbiology department of Calicut Medical College. The culture report during the month of April, May and June 2001 were all sterile.
6. On 28.5.01 when the complainant was operated there were a total of 11 paying cases. The complainant was operated as the 7th case. The list of the persons and the I.P.No. is mentioned in the version. It is stated all the above cases are doing well. In the year 2001, 1144 number of cases underwent surgery for IOL implantation in the paying section and the hospital never had any post operative endophthalmitis except the case of the complainant. The possibility of this infection arising from the operation theatre or from the surgical instruments is practically negligible. It is contended that any nosocomical cause of infection usually occurs in an epidemic proportion and will not affect one isolated case. Such sporadic cases of post –operative endophthalmitis are well described in the literature. The incidence of sporadic post-operative endophthalmitis following cataract surgery as per standard text book is about 0.5 to 1%. This is such an isolated case, which can occur in a well equipped exclusive eye hospital performing high volume cataract surgery. The 2nd opposite party is a surgeon having experience about 6 years after post-graduation. He was the best outgoing student for M.S Ophthalmology of Madurai Medical College for the year 1996. He had later done his fellowship at Sankara Eye Hospital, Coimbatore. He has done over 10000 cases of cataract surgery and has worked as a senior resident at Sankara eye society for 3 years. He has been performing the particular type of surgery in the hospital for the last 3 years. Complications are known to occur after any surgical procedure. Every effort was made to prevent complication and when such a complication occurred it was recognized early and referred and best possible treatment executed. It is also contended that there is no basis for the exaggerated amount of compensation claimed.
It is alleged that he has exaggerated the expenses for his treatment.
7. Evidence adduced consisted of the testimony of PW1, RWs 1 and 2, Exts.P1 to P15, R1 to R4.
8. PW1 is the complainant himself, RW1 is the 2nd opposite party, eye surgeon and RW2 is a person who underwent the same surgery on the same day along with that of the complainant. According to RW2, the surgery on his eye was done in a perfect manner and there was no complication. The Forum has upheld the contention of the complainant that in Ext.R4 series of culture report of the operation theatre of the opposite parties which is dated: 9.5.01 there is mention of aerobic spore forming bacilli (non-pathogenic dust flora) which indicated that there was presence of a bacilli in the surgical theatre and that it is aerobic and that it has grown to a stage of spore formation. According to the Forum, the opposite parties have not taken sufficient arrangements to make the theatre free from injurious bacteria before the surgery which was done on 28.5.01 and that the same cause infection to the left eye and subsequent loss of vision and directed the opposite parties to pay the amount of compensation as mentioned above.
9. It is stressed by the counsel for the appellants that Ext.R4 series of culture test reports of the swabs taken from various parts and instruments of the operation theatre indicated that the finding of the Forum is incorrect. In the report with respect to the swabs of the floor and wall what was hear noted is that “Routine culture grew scanty aerobic spore forming bacilli (non pathogenic – dust flora)”. The above is dated 9.5.01. Another report is dated:11.6.01 which is subsequent to the impugned surgery wherein with respect to the I.V.stand and trolley aerobic spore bearing gram negative dust flora is mentioned. The report dated:11.6.2001 is not relevant herein as it is dated subsequent to the surgery. In the report dated:9.5.01 as already mentioned is non-pathogenic dust flora (aerobic spore forming bacilli). Spores are cells produced by bacteria and fungi which can develop into new bacteria or fungi (Collin’s dictionary). The counsel for the appellant has stressed that what has been found in the report is only non pathogenic variety and the same would not result in the infection by Pseudomonas Aeruginosa which was the cause of infection in the instant case. He has relied on the Text Book of Microbiology, Ananthanarayan & C.K.Jayaram Paniker (7th Edition at page 51) that like other organisms, bacteria also breed true and maintain their characteristics from generation to generation and that different types of bacteria retained constant form and function through successive generations. It is also mentioned therein at page 246 that non pathogenic aerobic spore bearing bacilli appearing as common contaminants in cultures are stated to be not pathogenic. It is also mentioned at page 319 therein that Pseudomonas are a large group of aerobic non sporing gram negative bacilli, motile by polar flagella. No authority to the contrary has been produced in this regard. Hence the contention of the complainant and the finding of the Forum that Ext.P4 series of culture reports indicated the presence of the above type of organism ie Pseudomonas Aeruginosa was in existence and that the same resulted in the infection to the eye contacted by the complainant during the surgery appears incorrect.
10. It is asserted by the complainant that the infection was caused from the opposite party hospital during or subsequent to the surgery. The counsel for the appellant has stressed the fact that no expert evidence has been adduced and has relied on the decisions to support the contention that in the absence of expert evidence the liability cannot be fixed on the opposite parties. We find that it has to be examined as to whether in the absence of expert evidence and in the light of the available literature produced whether the case set up by the complainant stands established. RW1 the 2nd opposite party eye surgeon has testified that the specified protocols with respect to the surgery has been complied with and that the surgery was conducted in aseptic conditions with all care and caution and without delay the complainant was referred to a higher centre, ie Doctor Giridhar’s Eye Institute at Kochi which has got a vitreoretinal clinic. It is mentioned that there is no proper vitreoretinal clinic in Calicut. We find that the surgery was conducted on 28.5.01 and on the same day the complainant was discharged with bandage over left eye. On 29.5.01 ie the next day he came to the 1st opposite party hospital and the bandage was removed and was discharged with direction as to the cleaning and application of eye drops. It is mentioned in the version that on the same day YAG posterior capsulotomy was done for the right eye and was advised to apply mico tlox-dx eye drops for the right eye. Evidently, the complainant would have been at the above hospital for some time on the 29-5-01. It is not evident from the proceedings as to when the complainant returned home. It is admitted that on the same day in the evening he came to the residence of the 2nd opposite party doctor with pain and irritation to the left eye. On examination, according to the opposite parties there was moderate conjuctival congestion and moderate Iritis. According to the opposite parties, the condition can happen following cataract surgery in some patients. On the next day morning ie on 30.5.01 the complainant was admitted as an inpatient in the hospital. He was an inpatient on 31.5.01 as well and also on 1.6.01. There are entries on 2.6.01 also with respect to the administration of medicine in Ext.R1 case sheet. Evidently he was sent to Dr.Giridhar’s Eye Institute on 2/6. Evidently, the complainant was an inpatient in the opposite party hospital clearly for 3 days subsequent to the manifestation of the complications. Vitreous biopsy was done on 2/6/2001 at
Dr. Giridhar’s Eye Institute and detected pseudomonas Aeroginosa as the primary organism. Evidently it appears, 1st opposite party hospital is not having facilities for conducting vitreous biopsy. There is no explanation or evidence as to why such facility which is essential is not available at the opposite party hospital. The literature produced would indicate that there can be such infections contacted during or after surgery. It is also seen that such infections ie pseudomonas infections are initiated at the time of surgery and represent some type of contamination from the many sources including airborn contaminants including the air condition system, surface origin (skin, clothing etc.), solutions and medications, tissues, objects and materials like surgical instruments, gloves, orbital implants, sutures etc.(Cataract Surgery and its Complications, Norman S. Jaffe, MD etc. 6th Edition at pages 357 and 363). It is also seen that the species Aeruginosa is a classic opportunist pathogen with inmate resistance to many antibiotics and disinfectants and that more of the above infection is contacted from the hospital (Mackie & McCartney, Practical Medical Microbiology edited by J.G.Collee etc 13th Ediction at page 491 to 496). It is seen from the above authorities that the particular type of infection is quite a dangerous one. It is also seen mentioned that the infection may advance rapidly and involve entire cornea in 2 days or may evolve subsequently over several days. Clinical manifestations include eye pain, conjuctival hyperemia chemosis, lid edema, decreased visual acuity etc. (Harrisons Principles of Internal Medicine, 15th Edition at pages 964 and 965). The Text Book of Medical Microbiology edited by David Greenwood and Others, 15th Edition also mentions that the particular bacteria can cause a very dangerous infection in view of its adoptability and resistance to many antibiotics and disinfectants.
11. After removal of bandage on the left eye and after undergoing that the YAG posterior capsulotomy to the right eye on 29.5.01 on the same day in the evening he came to the residence of the 2nd opposite party with complaint of pain and irritation to the left eye. We find that the time factor in the matter indicates that it is more probable that the complainant got infected from 1st opposite party’s hospital or from the medications supplied from the 1st opposite party’s hospital. It is specified in the version that the antibiotics and steroid on the drops were given from the hospital. Further we find that the complainant ought to have been referred to a higher centre immediately detecting the complications rather than waiting for 3 days and treating for 3 days without realising the nature of the infection especially as the organ affected is the most sensitive one. Hence we find that it stands established that there is negligence on the part of the opposite parties especially as the required facility to diagnose the cause of the complication was not available in the 1st opposite party hospital and reference to a higher centre was delayed. Hence we sustain the finding of the Forum below, although for different reasons.
12. As to the amount of compensation awarded ie Rs.4.lakhs we find that there is no proper assessment by the Forum. It is seen from the records produced that the complainant was aged 49 years. His statement is that he was employed at Saudi Arabia and was having an income of 40,000 Saudi Riyals which is mentioned as equivalent to Rs.48,000/- per month. He has only submitted by a certificate allegedly from the employer. According to him he was working as a marketing executive. There is no evidence as to his educational qualifications. There is no supporting evidence as to the emoluments that he was getting from the employer like bank statements which he could have produced. Of course, the fact that he lost vision to the left eye stands not disputed. It has also came out in evidence that he had proceeded against the insurance company for the treatment expenses. He has not produced the records of the amounts received from the insurance company towards treatment expenses. Hence the claim with respect to the treatment expenses cannot be allowed as such in the absence of a production of the relevant document as to the amount received by him from the insurance company. The incident has taken place in May 2001. In the light of the above factors we find that the direction to pay a compensation of Rs.4lakhs appears excessive. We find that it would be appropriate to award a sum of Rs.2 lakhs as compensation in the circumstances. The order of the Forum is modified accordingly. The complainant will also be entitled for interest on the above amount at 6% per annum from the date of complaint ie 23.1.02. The complainant will also be entitled for costs of Rs.7500/-. The opposite parties will make the payment within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12%on the amount of compensation from 6-8-2011, the date of this order.
The appeals are allowed in part as above.
Office will forward the LCR along with a copy of this order to the Forum.
JUSTICE K.R. UDAYABHANU: PRESIDENT
VL.
