State Consumer Disputes Redressal Commission
The Chairman, Aravind Eye Hospital vs Minor Kanmani on 14 December, 2012
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
BEFORE THE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION AT PUDUCHERRY
Friday, the 14th day of December, 2012
First Appeal No.1/2012
The Chairman, Aravind
Eye Hospital,
having his office at Pondy-Cudddalore
Main Road, Abishegapakkam, Pondicherry.
. Appellant
Vs.
Minor Kanmani, rep. by her father and Guardian
Ramamurthy, residing at Puliyur
Village and Post,
Kullanchavady, via Panruti taluk.
. Respondent
(On appeal
against the order passed by the District Forum, Puducherry in Consumer
Complaint No.37 of 2007, dated 27.09.2011)
Consumer Complaint No.37 of 2007
Minor Kanmani, rep. by her father and Guardian
Ramamurthy, residing at Puliyur
Village and Post,
Kullanchavady, via Panruti taluk.
Complainant
v.
1. The Chairman, Aravind Eye
Hospital, having his
office at Pondy-Cudddalore Main
Road, Abishegapakkam, Pondicherry-7.
2. The Managing Director, Aravind Eye
Hospital, having his
office at Pondy-Cudddalore Main
Road, Abishegapakkam, Pondicherry-7 Opposite Parties
BEFORE:
HONBLE
JUSTICE THIRU K. RAVIRAJA PANDIAN
PRESIDENT
Thiru
K.ELUMALAI,
MEMBER
FOR THE APPELLANT:
M/s.
Law Solvers FOR THE RESPONDENT:
Tvl.
S. Ram Mohan and R.N. Saravanan, Advocates O R D E R (By Justice Thiru K. Raviraja Pandian, President) This is an Appeal at the instance of the Opposite Party in C.C.No.37 of 2011 against the Order of the District Forum dated 27-09-2011 wherein and whereby the District Forum directed the Opposite Party the appellant herein, to pay Rs.4,50,000/- to the Respondent as compensation for the loss of vision of the Respondents daughter due to the medical negligence and deficiency of service of the Appellant while treating her for her eye ailment. The said sum was directed to be deposited in a nationalized bank in the name of the minor child and the Respondent was permitted to withdraw the interest occurred thereon once in six months for the benefit of the minor child.
2. The facts of the case necessary for disposal of this appeal briefly stated are as follows: -
The Respondent, on 29-03-2005 presented his one and half year old daughter to the Appellants renowned eye hospital for treatment as the child was complaining of not able to open her left eye because some foreign body had fallen into it.
The doctor attached to the Appellant Hospital examined the child as outpatient. The eye was bandaged and the doctor told the Respondent that some caterpillar hair found in the eye were removed and directed the Respondent to bring the child for review. The child was again presented for review on 31-03-2005.The child was admitted as inpatient on 01-04-2005 and discharged on 04-04-2005. All the medicines prescribed were duly administered as directed by the doctor. The child was again produced for review on 26-04-2005.On that day on examination of the eye, the doctor of the Appellant Hospital told the Respondent to his shock and dismay that the child has lost her vision in the left eye. The Respondent filed the Consumer Complaint before the District Consumer Redressal Forum, Puducherry on the premise that his daughter lost her vision of the left eye because of the negligent and careless attitude with which the child was treated by the Appellant Hospital and therefore they are liable to compensate for their act of negligence and sought for compensation of Rs.4,90,0000/-
3. The Appellant refuted the same by contending inter alia that the Respondent brought his daughter on 29-03-2005 with the complaint of not opening the left eye for two days. On examination it was found that the left eyelid had swelling with conjunctiva congestion and inferior corneal epithelial defect. The multiple caterpillar hairs found in the upper tarsal were removed and antibiotic eye ointment applied and the eye was bandaged. The Responded was directed to bring the child for review on the next day. But the Respondent produced the child a day after on 31-03-2005. When the child was examined on that day as the left eye showed corneal oedema i.e. the transparent layer forming the front of the eye found collected with water, she was referred to Cornea Clinic, where it was found that the anterior chamber showed fibrinous reaction, which was diagnosed to be due to the intraocular migration of the caterpillar hairs into the anterior segment of the eye. To rule out migration of the caterpillar hair posteriorly causing verities and thereby causing impairment of vision, ultrasonography was done. On ultrasonography procedure being done it was found that the posterior segment of the eye was clear and there was no evidence of vitritis or endophthalmitis. The Respondent was directed to admit the child on the same day but was admitted on 01-04-2005 the next day; that the treatment started on that day with eye drops, eye ointment and injection was continued till 04-04-2005. The exudates in the anterior chamber were cleared and the child was discharged with direction to the Respondent to continue the medicine prescribed for a week and bring the child for review after a week on 12-04-2005. But the child was brought on 26-04-2005. On examination of the eye in Cornea Clinic it was found that the condition of the eye was deteriorated considerably with exudates in the Anterior Chamber, yellow glow of the fundus and organized exudates in the vitreous cavity suggestive of endophthalmitis due to posteriorly migrated caterpillar hair.
As the retinal condition could not be visualized due to the presence of exudates, ultrasonography was done which showed total retinal detachment with closed funnel configuration. In such condition as the visual recovery was remote no surgical treatment was advised. As there was active inflammation, steroid eye drops and atropine eye ointment were prescribed to relieve pain and discomfort. The Respondent was orally informed about the condition of the child and directed to continue the treatment to relieve her from pain and shrinkage of eye and bring the child after 20 days. The child attended the hospital on 10-05-2005, 11-07-2005, 28-09-2005 and 03-1-2006 and thereafter stopped attending the hospital. All the treatments were done in accordance with the accepted standard of treatment. There was no negligence on the part of the Appellant. The Complaint was not legally sustainable and liable to be dismissed.
4. The District Forum upon analyzing the evidence made available on record and upon hearing the arguments advanced by the parties accepted the case of the Respondent that the Appellant was negligent and deficient in rendering medical service to the child and thereby rendered themselves liable to compensate to the Respondent. The compensation was computed taking into consideration of the age of the child and the financial status of the Respondent and the hardships to be faced by him in bringing her up and getting her married and awarded Rs.4,50,000/-.
5. Before us the Appellant contended that the order of the District Forum is based more on sympathy and not on any acceptable standard of proof based on the material evidence on record and passed on total misconception of fact and law. As no medical negligence on the part of the Appellant was proved rather attributable to the Appellant on the face of the evidence available on record, the order awarding compensation, that too by casting aspiration of medical negligence on the part of the Appellant is much against the evidence and therefore liable to be set aside. On the other hand the Respondent contended for sustaining the order of the District forum.
6. Heard the Counsel and perused the materials on record. The bone of contention of the Appellant was that with the available materials on record the District Forum went wrong in holding the Appellant was negligent in giving treatment to the child. The Appellant took all care and caution and the treatment given was in accordance with accepted standard of care.
7. It is the admitted case of the Appellant that the child was brought to the Appellant hospital on 29-03-2005 with the complaint of not opening the left eye for past two days. On that day the doctor attached to the Appellant hospital on slit lamp examination found the presence of caterpillar hair in that eye and removed the same and bandaged the eye after applying with antibiotic eye ointment and asked the Respondent to go back and come for review next day. It was contended by the Appellant that the Respondent was directed to bring the child for review on the next day i.e. on 30-09-2005 but the child was brought a day later i.e. on 31-03-2005.
8. It could be seen from Ex.R-2 the out patient record pertaining to the child that on 29-03-2005 an observation/examination remark was entered therein to the effect that the foreign body/caterpillar hairs found in the left eye were removed and review it next day. This Exhibit R-2 is Appellants internal record maintained by them in the hospital. From Ex.C-1 the cash receipt of the Appellant evidencing receipt of Rs.50/- from the Respondent on 29-03-2005 it is evident that the child was produced before the Appellant for treatment on 29-03-2005. Apart from these two documents the former with the possession of the Appellant and the latter with the Respondent no out patient ticket containing the details as to what was the ailment with which the child was suffering from when produced before the Appellant on 29-03-2005, what was the diagnose made by them, what was the treatment given to the ailment on that day and when the patient required to come for review was made available by both the parties. It appears that no out patient ticket was given to the Respondent which procedure is usually followed in almost all hospitals. There is absolutely no direct documentary evidence available to establish that the Respondent was directed to bring his child the next day for review as contended by the Appellant except Ex.R.2. In the absence of any positive documentary evidence like outpatient ticket, the endorsement contained in the EX.R-2, which is an internal record of the Appellant, could not be regarded as a conclusive proof to establish that the Respondent was directed to produce the child on 30-03-2005.
9. Even assuming the contention of the Appellant is correct, that would not militate the case against the Respondent and could be regarded as solitary reason for the failure of vision in the eye as the condition of the eye was found normal when she was discharged from the Appellant hospital on 04.04.2005 after treating her as in patient from 01-04-2005, which factum was admitted unequivocally by R.W.1 the Chief Medical Officer of the Appellant hospital in his evidence. Therefore the contention of the Appellant that the delay of one day in subjecting the child for review would have aggravated the ailment to the extend of retinal detachment falls to ground.
10. It is the further admitted case of the Appellant, both in their reply version and evidence through R.W.1 that when the child attended the hospital on 31.03.2005 the eye developed corneal oedema; that the anterior chamber showed fibrinous reaction diagnosed to be due to the intraocular migration of the caterpillar hairs into the anterior segment; that to rule out any migration of the caterpillar hairs posteriorly and causing vitritis or endophthalmitis, ultrasonography was performed and on such performance it was found that posterior segment was clear and there was no evidence of vitritis or endopgthalmitis; that the child was advised to be admitted on the same day but was admitted on the next day on 01-04-2005. On 02-04-2005 the fibrinous exudates in the anterior chamber reduced and the same treatment with eye drops, eye ointment and injection was continued till 04-04-2005 and on 04-04-2005 the exudates in the anterior chamber were cleared and the child was discharged with advise to continue the same medicine for a week and come for review on 12-04-2005. The above statement has been verbatim vouchefed by the Chief Medical officer of the Appellant as R.W.1.From the above admitted statement corroborated by the evidence of R.W.1 it is clear that child was admitted as in patient on 01-04-2005 for treatment for fibrinous reaction found in the anterior chamber only and there was no defect in the posterior segment of the eye. There was no movement of the caterpillar hair to the posterior segment till then.
11. At this juncture the evidence of the Expert Doctors Dr. Vasudev Anand Rao, C.W.2 and Dr.Arun S.Deshpandy C.W.3, assume importance. In his evidence C.W.2 the Head of the Department, Director and Professor of Ophthalmology, JIPMER, Puducherry has deposed about the seriousness of falling of caterpillar hairs in the eye by stating that the caterpillar hairs have fine spines and it has tendency to migrate to the cornea or sclera that produces inflammation in the eye and in rare cases might lead to the detachment of retina. C.W.3 the Senior Consultant of Vitreo Retinal Department of Sankar Nethralaya, Chennai has deposed to the effect that entering of caterpillar hair in to eye is scientifically termed as Opthalmia Nodosa. Normally Opthalmia Nodosa includes range of signs, range of symptoms including redness of the eye and watering to decreased vision and infection in the eye; that in this case it has been mentioned as congestion in the records; that on 29-03-2005 no scan was taken; that if had the scan be taken on that day sometime the existence of caterpillar hair would have been found out; that it is difficult to remove the caterpillar hair from the inner portion of the eye and could be removed by Vitreo Retinal Surgery; that the Appellant did not advise such kind of surgery. R.W.1 the Chief Medical Officer of the Appellant hospital admitted in his evidence that if caterpillar hair enters an eye it is a complicated one; that if caterpillar hair enters the intraocular cavity, definitely it would cause loss of vision.
12. The case study materials authored by eminent doctors like Peter G.Watson and David Selvel of Institute of Ophthalmology, London R.Foster Moore, London Dr.Vinod Sharma, Department of Ophthalmology, Indira Gandhi Medical Collage, Shimla and Dr. Om Prakash of Maulana Azad Medical College, New Delhi also show that the patients who presented themselves after three or four days even fourteen days history of Apthelmia Nodosa were on constant medical care, treatment and application of medicine cured without any surgery. From the evidence of C.W.2 and 3 and R.W.1coupled with the finding of the case study articles above referred to, it is clear that the complaint of Apthelmia Nodosa is a complicated one, the caterpillar hair fallen into the eye is difficult to remove, it has fine spine and have the tendency to migrate to the cornea, on such migration it would cause Retinal detachment, the same is medically curable on the constant and sustained application of medicine under the care and frequent observation of doctors; that in worst case it could be curable surgically. But the saddest part of this case is that the child lost the vision of eye despite the fact that the hair was not migrated to the Cornea till 04-04-2005.
13. The Appellant hospital is one of the renowned hospitals, having research department and a Post Graduate Ophthalmology Department, run by charitable trust, could not be said that they were not aware of the seriousness of the ailment or the methodology of the treatment to the ailment. As a matter of fact the seriousness of this kind of ailment has been spoken to by R.W.1 in his evidence, which was discussed above. Even in a renowned institution occasionally there may be occurrence of medical negligence like the present one. That is what happened in the present case. Despite knowing the seriousness and complication of the ailment, the Appellant has treated the child in a very casual manner. Having regard to the nature of the ailment it is beyond anybodys comprehension that the child required serious and continuous sustained attention from the Appellant particularly when the existence of caterpillar hair in the eye, which would cause impairment of vision, was found on the first day when the child presented herself for treatment on 29-03-2005. Mere removal of the hairs in the anterior portion of the eye, applying eye ointment, padding the eye and asking the patient go back and come for review on the next day would not meet the required standard of sustained constant care and application of proper medicine on the face of the evidence of C.W.1 & 2 and R.W.1. R.W.1 admitted in his evidence that even in ultrasonography it was rather difficult to find out the existence of the hair in the eye and migration of the hair into the posterior cavity would impair the vision of the eye. When such being the seriousness of the ailment, in the normal course of treatment it is expected from a prudent doctor to keep the child under constant care in the hospital till the ailment is completely cured off. The constant and sustained care of the doctor by frequent examination of the eye is vital requirement of the instant ailment which is totally neglected and lacking in this case because the callousness with which the Appellant treated the child. The answer of the Appellant that the condition of the ailment did not warrant admission of the child as in patient on the first day of her presentation and discharging the child by clearing the exudates without confirming that the ailment was completely cured and the vision was normal, the failure of which has been admitted in evidence by R.W.1, are definitely not an answer which is expected of from any doctor much less the institution of the Appellant stature having regard to the nature of the ailment and the methodology of treatment it required, and that would certainly tantamount to callous negligence on the part of the Appellant. The discharge summary Ex.C-2 is a glaring example for the casual nature shown by the Appellant. It contains no history of the patient, and no details about the condition of the patient at the time of her first presentation for treatment on 29-03-2005 and the condition of the ailment at the time of admission on 01-04-2005 and at the time of discharge on 04-04-2005 and no summary of the treatment given as expected to be in a discharge summary is available therein, which is a monumental example for the careless attitude of the Appellant.
14. The ailing patient was in her tender age of one and half years not in a position to communicate her ailment, which was also admitted by R.W.1. The father of the child the Respondent herein is a rustic, illiterate and poor villager who does not know or aware of anything about the ailment leave alone the seriousness of the same. But he offered his child to the complete care, custody and discretion of the Appellant reposing highest level of confidence, on the fond hope that he handed over his child to the safe and caring hands of the Appellant who would provide all necessary treatment with utmost care and return the child without any infirmity. It is the duty and responsibility of the Appellant to make known the Respondent about the seriousness of the ailment and the nature of treatment to be given so as to enable him to take whatever further course of action he could take to the best of his wisdom. The proved factum that the Appellant kept the Respondent under complete darkness about the same has been judicially declared as an act of medical negligence.(Vide Samira Kohli Vs. Dr.Prabha Manchanda & another reported in 2008(1) CTC 392). The Appellant could have admitted the child when she was produced on 29-03-2005 for continued treatment as the ailment required sustained and frequent examination of the eye as per the case study article.
Even after admitting the child having found inflammation in the eye on 01-04-2005, the Appellant would have retained the child under its care till the ailment is completely cured off as it was made out in evidence that at the time of discharge on 04-04-2005 the caterpillar hair has not been migrated to the posterior portion of the eye and the treatment given was in the right direction but aborted in a casual manner for no tangible reason. Here again the Appellant behaved in a manner, which could only be characterized as negligent.
15. From the available materials on record, we have no hesitation in holding that the Appellant was negligent in giving proper and continued medical care and assistance to the child, which caused loss of vision of her one eye and thus rendered them liable to compensate the Respondent for the mental agony and anguish caused to him due to loss of vision of one eye of his daughter and the continued mental agony in facing and to be faced in bringing her up, getting her educated and above all getting her married.
16. The Compensation awarded in a sum of Rs.4.50 lakhs, having regard to the nature of physical challenge with which the girl child afflicted and to the present day cost and standard of living could not be regarded as in the higher side and requires no interference. The District Forum passed the order impugned on 07-09.2011 directing the Appellant to deposit the said amount within 30 days from the date of order in fixed deposit in the name of the child in a nationalized bank and permitted the Respondent to withdraw the interest accrued thereon once in six months for the benefit of the child. If the appellant has not deposited the amount as directed by the order impugned, we direct that the same shall be deposited within two weeks from today as directed in the impugned order along with interest @ 10% per annum from 07-10-2011 so that the loss of interest caused to the Respondent due to non deposit of the amount would be get adjusted.
17. For all the above said reasons we find there is no merit in the appeal and the same is liable to be dismissed and is dismissed with cost of the Respondent in a sum of Rs.15,000/- to be paid within two weeks from to-day.
18. In the result the appeal is dismissed with cost of the Respondent in a sum of Rs.15,000/- to be paid within two weeks from to-day.
Dated this the 14th day of December, 2012.
(Justice K. RAVIRAJA PANDIAN) PRESIDENT (K.ELUMALAI) MEMBER