National Consumer Disputes Redressal
Dr. P.R. Niveditha vs Y. Ramalakshmamma & Ors. on 16 September, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3361 OF 2011 (Against the Order dated 29/06/2011 in Appeal No. 373/2009 of the State Commission Andhra Pradesh) 1. DR. P.R. NIVEDITHA Eye Surgeon Govt,Eye Hsopital Kurnool A.P ...........Petitioner(s) Versus 1. Y. RAMALAKSHMAMMA & ORS. R/o Chinnapoddille Village, PapiliMandal 2. Y.Dhanajaya R/o Chinnapoddille Village, PapiliMandal Kurnool A.P 3. Y. Surtanaryana R/o Chinnapoddille Village, PapiliMandal Kurnool A.P 4. Dr. K Bhirani Kumar Reddy, Unit-III Incharge Govt Eye Hospital Kurnool A.P 5. the Suprintendent Govt Eye Hospital Kurnool A.P 6. The District Collector kurnool kurnool A.P ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mrs. Radha, Advocate For the Respondent : For the Respondents 1- 3 : Ms. Suchi Singh, Amicus Curiae For the Respondents 4-6 : NEMO Dated : 16 Sep 2015 ORDER DR. S. M. KANTIKAR, MEMBER
1. Complainant, Mr. Y.Ramudu 50yrs (herein referred as "Patient") approached petitioner/OP 1, Dr. P. Nivedita, on 15.11.2006 with the complaints of irritation in his left eye. On 16.11.2006, his cataract surgery was performed by Dr. P. Nivedita and Dr. K. Bharani Kumar Reddy (OPs 2 and 3) and the patient was discharged. Thereafter, the patient consulted OP 1/petitioner, on 13.12.2006 for feeling of irritation in the operated eye. Even after discharge from the hospital, the pain and swelling in his left eye, continued. The patient again visited OP/Hospital on 26.12.2006; the OP referred him to Sarojini Devi Hospital, Hyderabad, wherein it was diagnosed as extensive damage to his operated eye. Hence, on 3.1.2007, his left eye was removed. Hence, alleging medical negligence, the complainant filed a complaint before the District Forum and prayed for compensation of Rs.2 lakhs.
2. The District Forum allowed the complaint and directed the OPs 1 to 4 to pay Rs. 50,000/- as compensation and Rs. 5,000/- as costs. The OPs preferred first appeal, which was dismissed by the State Commission. Hence, this revision petition is filed by OP-1.
3. We have heard the learned counsel for both the parties. Learned counsel for the petitioner/OP-1 argued that OP-1 had no role in the operation as she did not operate the patient. The operation was conducted by OPs 2 & 3. OPs 2 and 3 are working in the Government Hospital; therefore, they were not made liable under the Consumer Protection Act, 1986. In the instant case, the patient developed endophthalmitis, it was not due to negligence of OPs. She further submitted that the patient had not taken rest. He attended to his work, Corneal ulcer developed due to eye injury while he was working in his fields. The counsel referred to few medical text books.
4. The rival arguments by learned counsel for the complainant are that, the patient was a consumer, OPs failed to advise post-operative follow up, the caution to be taken, etc.. She placed reliance upon the case Pravat Kumar Mukherjee vs. Ruby General Hospital and Ors. II (2005) CPJ 35 NC, in which Hon'ble Supreme Court observed in para 14 (10) as under:
10. Service rendered at a governmental hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression 'service' as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be 'service' and the recipient a 'consumer' under the Act."
56. Further once the treatment has started, it would mean that the complainant has hired the services. May be at the relevant time the consideration was not fixed or not paid. But, it was either dismisse, deferred or because of implicit duty of a noble profession in such emergency cases.
60. It is also an established law that under the Act National Consumer Forum has jurisdiction to award compensation depending upon established facts and circumstances of the case. While dealing with such contention in Charan Singh v. Healing Touch Hospital & Ors. (2000) 7 SCC 668, the Court observed that the consumer forum are required to make an attempt to serve the ends of justice so that compensation is awarded in an established case which not only serve the purpose of recompensing the individual, but which also at the same time aims to bring about the qualitative change in the attitude of service provider. The Court pertinently observed "It is not merely the alleged harm or mental pain, agony or physical discomfort, loss of salary and emoluments etc. suffered by the appellant which is in issue - it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence."
5. We have perused the medical record. It is pertinent to note that, initially, the patient was admitted on 05.10.2006 for Cataract operation, but it was deferred because of development of Retro-bulbar hemorrhage after administration of local anesthesia, hence he was discharged on 06.10.2006. Thereafter, on 16.11.2006 the OP-2 performed the surgery. We are of considered view that, OPs should have been more vigilant in their duty of care. The patient was a coolie; he should have been instructed about the post-operative care follow-up and precautions. OPs failed to advise the patient in this regard. The medical record produced by OP is devoid of such instructions to the patient.
We take clue from the judgment in Dr. Laxman Balkrishna Joshi Vs. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128 wherein the Hon'ble Supreme Court held that:
The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those, duties gives a right of action for negligence to, the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law require: (cf. Halsbury's Laws of England 3rd ed. vol. 26 p. 17).
7. In the instant case, we are of considered view that OP-1 and 2 failed in their duty of care, hence held liable. We, therefore, confirm the well-reasoned order of State Commission and dismiss this revision petition. There shall be no order as to costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER