State Consumer Disputes Redressal Commission
Shri S.K Alagiri vs Dr. Rohindra Lall on 9 August, 2017
State Consumer Disputes Redressal Commission
Andaman & Nicobar Islands
Port Blair
Present: Justice Asim Kumar Ray, President.
Smti. Biji Thomas, Member.
Dr. Dinesh, Member.
CONSUMER CASE NO. 01 of 2012 Shri. S.K. Alagiri, S/o Late Singan Kumarandi, R/o Anarkali, PS Aberdeen, Port Blair.
...............Complainant
-vs-
Dr. Rohindra Lall, Rohin's Eye Hospital, 23, AIR Road, Delanipur, Port Blair.
...............Opposite party Mr.Arul Prasanth, Advocate of Complainant Mr.N.A.Khan, Advocate of Opposite Party Judgment Dated: 09th August, 2017 Judgment Asim Kumar Ray, J. President.
The complainant Shri.S.K.Alagiri, a resident of Port Blair, A&N Islands visited Rohin's Eye Hospital, Port Blair, of Opposite party Dr. Rohinder Lall, an Ophthalmologist for eye check up on 10.01.2011. He was registered as a patient vide MRD No.876-T. The Opposite party examined him and found cataract changes in his both eyes and the left eye more than right eye. He was advised to undergo cataract surgery on 20.01.2011. He visited the hospital as advised for surgery and deposited Rs.28, 000/- as asked for.
Cataract surgery in the left eye of the complainant was performed without preliminary investigations/pre-operative investigation by the opposite party on that date i.e on 20.01.2011. He was discharged after one hour of the operation with an advice to report the next day i.e on 21.01.2011. He spent sleepless night due to a lot of pain in his operated eye, contacted the opposite party and was advised to take few tablets, said to be pain killers. On 21.01.2011 he had been to the hospital with severe pain, redness and swelling in his left eye. The opposite party prescribed few tablets which is also said to be pain killers with an advice to report on the next day i.e on 22.01.2011. The complainant visited the hospital accordingly with pain, redness and swelling in his eye and again some medicine was given. He could not see anything when the bandage of his eye opened.
-2-On 23.01.2011 he was referred to Rajan Eye Care Hospital at Chennai. The Complainant alongwith his wife left for Chennai on that date i.e on 23.01.2011 with a referral letter handed over to him by the opposite party. The Complainant was immediately admitted in the hospital at Chennai on the day of his arrival i.e 23.01.2011. On 24.01.2011 he underwent anterior chamber wash + parsplana vitrectomy + intravitreal antibiotics under local anesthesia. The complainant suffered immense pain and sufferings after the above surgery. On 26.01.2011 he was examined again by the Doctor of the hospital at Chennai and underwent intraocular lens removal + repeat vitrectomy + intravitreal antibiotics in his left eye under local anesthesia on 28.01.2011. He was discharged by the hospital of Chennai with a direction to come back after one week for review and as such he along with his wife left for Chennai on 08.02.2011.
The complainant requested for the copies of the original documents but the same was denied by the hospital at Chennai and only the case summary was given on 04.02.2011. The Doctor advised him to come back on 11.03.2011 for review and further treatment and he accordingly visited the said hospital on 11.03.2011 and returned to Port Blair on 12.03.2011. He was asked to come back for further review after two months.
The complainant alongwith his attendant visited the hospital on 18.05.2011, his treatment was continued upto 26.05.2011 and thereafter, he returned to Port Blair alongwith his attendant on 27.05.2011. The Doctor advised him to come back after 20 days and accordingly he had been to the hospital on 18.06.2011 with his attendant and after treatment returned to Port Blair on 23.06.2011. He was advised to come back on 05.08.2011 and again he had been to Chennai for examination and treatment and returned to Port Blair on 09.08.2011. The complainant was asked to come back on 16.11.2011 for review, he had been to Chennai accordingly with a bonafide belief that his vision of left eye will come and after treatment returned to Port Blair on 23.11.2011.
The Opposite party at the time of cataract surgery or prior to operation and after the surgery of the left eye of the complainant never disclosed anything regarding the details of the lens such as make, manufacturing date, expiry date and other details. He was never issued any documents showing -3- details of lens. No formal discharge summary was also given by the Opposite party. He was only given a referral letter. The left eye of the complainant is vision less due to the use of expired lens and or retained intra ocular foreign bodies.
The complainant in the process of treatment, travel, boarding, lodging, medicine and for other expenditure has incurred an amount of Rs. 3,61,537.45 /- (Three Lakhs Sixty One Thousand Five Hundred Thirty Seven forty five paisa only). The complainant is vision less in his left eye even after prolong treatment and that due to the negligence on the part of the Opposite party.
In the aforesaid backdrop, the complainant has filed this complaint praying for total damages of Rs.53,94, 687.45/- (Rupees Fifty Three Lakhs Ninety Four Thousand Six Hundred Eight Seven and forty five paisa only) alleging medical negligence and deficiency in service.
The opposite party Dr. Rohinder Lall is contesting this dispute case by filing a written objection wherein he has denied and disputed each and every allegation set forth in the body of the complaint and has contended, inter alia , that the complaint is totally misconceived. There was no deficiency in service and negligence on the part of the Opposite party in providing the medical treatment to the complainant. The Opposite party has performed his duty with utmost care and caution.
The specific case of the Opposite party is that complainant Shri.S.K.Alagiri aged about 50 years reported to the hospital of the Opposite party on 10.01.2011 with the dimension of vision for distant and near coupled with a complaint of watering. He was registered as a patient and was given a MRD NO. 876-T. On examination, his visual acuity on Right Eye was 6/12 and Left Eye 6/24 with glass and cataracts changes in both eyes i.e the left more than right. The patient was advised to undergo cataract surgery on the left eye and was asked to choose cataract package. He accordingly has chosen package of Rs.28,0000/- (Rupees Twenty Eight Thousand Only). The package contained intraocular lens, Karatom Knife, sidepot knife, tubing set, viscoat solution and balance salt solution.
-4-He had to undergo pre-operative investigation like Blood Pressure, Blood Sugar, Lachrymal sac patent test, intraocular pressure, keratometry to find out corneal curvature and astigmatism of the cornea and then A-scan Biometry to find out axil length of eye ball to calculate intraocular power of the eye ball. After routine systematic and local investigations like Blood Sugar, Blood Pressure, Intra ocular Pressure, Sac Syringing, IOL power calculation, patient's surgical date was fixed on 20.01.2011 and the patient was given prophylactic tropical antibiotic drops and anti-inflammatory drops. Anti inflammatory drops was prescribed which was to be used 4-5 days before surgical date.
The patient had undergone Phaco Surgery with implantation of foldable IQ Intraocular lens of + 22.0 diptor under Local Block. Surgery was uneventful and the patient had no complaint before leaving the hospital. On the next day i.e 21.01.2011 he had no major complaint and the visual acuity of the left eye was 16/18 part with no undue anterior chamber reaction. Patient was also prescribed to the routine post operative medicine. But on 22.01.2011, the patient came with a complaint of pain, redness and dimension of vision, suggestive of post operative Endopthalmitis. The patient was immediately taken for intravitreal vancomycin injection and other aggressive medication was suggested and thereafter there was advice to come on 23.01.2011 for follow up.
On 23.01.2011 seeing the condition of the eye the patient was referred to Rajan Eye Care Hospital, Chennai as he requested the Opposite Party to refer him to a Dr. whom the Opposite party knew personally. The Opposite party had referred the complainant to Rajan Eye Care Hospital at Chennai whose doctor Dr. Mohan Rajan was known to the Opposite party. There was no negligence on the part of the Dr. Rajan Eye Care Hospital as the Opposite party has followed all the protocol which is required for carrying out cataract surgery. The patient has lost his vision on the left eye due to retinal detachment which occurred during course of surgical procedure for treating post Endopthalmitis as per the record of the Rajan Eye Care Hospital.
The complainant is not entitled to any reliefs as prayed for. It is rather the Opposite party who is entitled to compensation for false and baseless -5- allegation made against him by the complainant. The complaint filed by the complainant is baseless, mis-leading, mis-conceived and lacks merit in it and the same be dismissed with cost.
Complainant Shri.S.K.Alagiri has filed evidence on affidavit and examined himself as his witness No.1/PW-1. He produced Dr.Anita Shah as his witness No.2/PW-2. Besides the Oral evidence, he has filed and caused the exhibition of documents/(Exhibit-1 to 80). On the other hand, Opposite party Dr.Rohinder Lall has filed his evidence on affidavit and examined himself as his witness No.1/DW-, has produced Dr. Mohan Rajan as his witness No.2/DW-2 and Dr. Saji Varghese as witness No.3/DW-3. Besides the oral evidence, the Opposite party has produced documents and caused the exhibition of the same (Exhibit-A to Exhibit-A/22). It is to be noted that Opposite party has filed photocopies of Exhibits-A, A/3, A/4, A/5 and A/6 besides patient information level and lens implant identification card but not Exhibit-A/1 and Exhibit-A/2 at the time of filing written objection though he has claimed that the same being part of MRD No.876-T were in his possession.
Both parties have filed written argument as they are represented by their Counsels (vide clause -13 of Consumer Protection Regulation, 2005).
Mr. Arul Prasanth, Ld. Counsel appearing on behalf of the complainant invited our attention to the Order No.1 dated 14.03.2012, Order No.2 dated 24.04.2012 and the report submitted by the Committee (Exhibit-80). He has contended that Exhibit-80 was not objected to by the other side. Protocol of cataract surgery has not been followed. The type of cataract was not identified before the surgery. The surgery was conducted without knowing the type of cataract. It is a gross medical negligence on the part of the Opposite party. Blood Sugar was not checked and the same has been admitted by the Opposite party in his evidence. The written argument says that Blood Sugar test was not conducted. The patient was not referred to the mainland hospital on 22.01.2011, so the Opposite party was negligent. No document was produced to show Post Operative advice given to the patient. The packet of lens was opened on 10.01.2011 and implanted after surgery on 20.01.2011 which causes infection and resulting in blindness in left eye.
-6-He has contended further that the patient was discharged after one hour of the operation. No hospital does like that. Operation Theatre (O.T) was not sterilized so there was infection. The O.P has practiced fraud upon this Commission by filing certain documents (Exhibit-A/1 and A/2) afterward without Commission's permission. Those two documents were not filed at the time of filing written objection by the Opposite party. The evidence of PW-2 cannot be taken for consideration as he has stated on oath that he is supporting the case of the Opposite party who is his friend. According to Professional Conduct Etiquette and Ethics, 2002 Registration No. of the Doctor is to be displayed but the same has not been done, which has been admitted by the Opposite party in course of his oral evidence. It is deficiency in service.
The case summary was not given to the complainant by the Opposite party which is also a deficiency in service. Exhibit-A/6 does not bear the signature of the attendant. The Opposite party without obtaining full consent conducted the surgery. No slit lamp examination was conducted. Nothing is written in Exhibit-A about slit lamp examination. Opposite party is a habitual negligent as another case is pending against him before the other court. His license should be cancelled. Opposite party has not acted reasonably with skill and knowledge.
Mr.Prasanth took us to the oral evidence of the witnesses of both sides in course of his argument. He has referred to the following citation:-
(1) H.S. Sharma Vs Indraprastho Apollo Hospital(2007)(2)CPR 76 (NC). (2) Bajan Lall Gupta Vs Mool Chand Kharati Ram Hospital [2001]1 CPJ(NC)31.
(3) Mrs.Preetha Reddy Managing Vs V.Govindan No.18 (Old No.14) (F.A.No.492/2011), State Commission, Chennai.
(4) Medical Council Professional Conduct, Etiquette and Ethics Regulation, 2002.
Mr. N.A Khan, Ld. Counsel of the Opposite party has contended that there is no evidence that Opposite party has committed medical negligence in his treatment given to the Opposite party. There is no evidence from expert to show that wrong treatment was given by the Opposite party. Exhibit-80 is -7- not a conclusive report. There is nothing to show that Opposite party is responsible for vision loss in the left eye of the complainant. There is nothing on record that on 23.01.2011 Dr. Mohan Rajan clinic got anything to come to a point that Opposite party was negligent. Exhibit- A/6 and Exbt.-A/7 reflect the date of expiry of lens. Lens was not expired on the date of implanting the same on the left eye of the patient after surgery by Opposite party. Exbt.- A/12 indicates that there was no infection in the eye on 01.03.2011. He has contended further that Blood Sugar test was conducted by the staff of the Opposite party at the hospital and the same was 90Mg/dl (R). It is noted in Exhibit -A/1. The hospital staff maintains the record that is why Exhibit A/1 and A/2 show some discrepancy. He has also contended that the document which was filed at the time of filing the written objection of Opposite party cannot be taken for consideration as it has not exhibited.
He has referred to the guidelines for pre-operative, operative and Post- operative practices for intraocular eye surgery.
We have perused the record, order sheets, evidences both documentary and oral, the citation referred to, Professional Ethics, Rules and Regulations 2002 as well as guidelines for Pre-Operative, Operative and Post Operative Precautions for Intra Ocular Eye Surgery very minutely. We have perused the written argument submitted by the Ld. Counsels of the parties. We have taken stock of the argument advanced by the Ld. Counsels appearing for the parties.
We are taking the background of the case once more as it requires for analysis of evidence to arrive at a reasoned decision. On 10.01.2011, complainant visited Rohin's Eye Care Hospital and was examined by the Opposite party. He was advised to undergo cataract surgery; accordingly on 20.01.2011 cataract surgery in his left eye was performed by the Opposite party. Following the cataract surgery, complication arose and it was diagnosed that the complainant has suffered from Post Operative Endopthalmitis. He was referred to Rajan Eye Care Hospital, Chennai. The complainant arrived at hospital at Chennai and has undergone treatment on and from 23.01.2011 to 18.11.2011 but ultimately lost his vision in his left eye.
-8-Cataract surgery involves removal of Opaque lens either by emulsification of the cataract, and sucking it out or taking it out in one piece from the eye and replacing it with an artificial Intra Ocular Lens (IOL). In case of complainant Phaco surgery was done. Phaco surgery has an incision size of 2.8 to 3.20 mm and ultra SONIC needle vibrating at a very high speed is used to dissolve the cataract. The liquefied material is sucked out of the eye through hollow bore of the vibrating needle. A soft foldable Intra Ocular Lens (IOL) is injected into the eye where it opens up to regain its shape and function.
Surgical procedure is a planned procedure. Before carrying out any surgical procedure pre-operative care is necessary. It has to be ascertained that the patient is fit to undergo proposed surgery. The general principle of pre-operative surgery includes:
(a) Good history
(b) Physical Examination
(c) Investigation
(d) Appropriate treatment of any existent illness.
We are concentrating on point No.'C' - Investigation and now requires to take look on the report submitted by the Committee as per order passed by this Commission before proceeding with this matter at the very initial stage. The report has been marked as Exhibit-80. The report was called for following the guidelines of the decision of the Hon'ble Supreme Court in Martin F.D'Souza Vs. Mohd Ishfaq reported in (2009) 2 C Cr LR (SC) 563. The direction of the Supreme Court is reproduced below:
" We, therefore, direct that whenever a complaint is received against the Doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the Doctor or Hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent Doctor or Committee of the doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to the -9- doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew 's case, otherwise the policeman will themselves have to face legal action".
The Committee has formulated four main issues to be examined by it for submission of the report:
(A) Lack of pre-surgical medical work up and investigation:
The Pre-surgical, medical work up and investigation includes;
1) Diagnosis of type of Cataract and surgical procedure to be performed.
2) Occular examination of both eye to rule out any septic foci and to give opinion regarding success of surgery.
3) Complete physical examination to rule out systemic illness like Diabetes, Hypertension, Cardiovascular complication, chronic obstructive pulmonary diseases (COPD) and renal diseases.
4) Complete blood investigation including blood sugar, urine examination, Blood pressure, ECG etc.
5) Keratometry, biometry to calculate accurate IOL power.
Comments: No documents submitted in support of above mention pre- surgical, medical work up and investigation.
(B) Immediate Post Operative care was non-existence and the complaint was asked to go home 1 hour after surgery.
Comments: With the available documents, the operative procedure done, post-operative medication and post-operative instruction is not available.
(C) Complainant was not given discharge summary or any detail of the surgery performed including details of lens implanted.
Comments: No discharge summary available in the enclosed documents. The documents regarding manufacturing, expiry, and type of lens used is not enclosed.
(D) That the left eye of the complainant was visionless due to usage of the expired lens and or retained foreign bodies.
-10-Comments: The document regarding, lens card or sticker of the lens which contain, make, type of lens used, their manufacture date and expiry date is not available.
On Examination of patient:
1) Torch light Examination:
Left Eye: Anterior Segment: * Mild conjuctival congestion on upper Quadrant present.
• 3 Corneo-Scleral stitches
present
• Anterior chamber well formed
• Pupil semi-dilated and up-
drawn
• Papillary reaction absent
• Aphakia present.
The available documents before the committee were a referral letter given by Rohin's Eye Hospital to Dr. Mohan Rajan Eye Hospital, Chennai which show diagnosis of Post-operative Endopthalmitis of left eye, lens used during surgery, Intravitreal vancomycin given and vision was Pl+PR in all quadrants of left eye were mentioned.
Comments: The dose of vancomycin and other standard medication for Endopthalmitis is not mentioned in the enclosed letter.
The findings have been confirmed with the slit-lamp examination and slit lamp photographs taken.
1. Fundoscopy:
Left Eye: *No glow
2. Vision:
Left Eye: *No perception of light
Intra-ocular pressure by non-contact Tonometer:
Left Eye: *Not recordable.
Conclusion: On the basis of scrutiny of documents and examination of
patient Shri.S.K.Alagiri, S/o Late Singan Kumarandi, R/o Anarkali, Port Blair, by the Committee, it was found that patient is permanent blind from Left Eye.-11-
The members of the Committee were Dr. (Mrs.) Anita Shah, Eye specialist and Dr.Saji Varghese, Surgical Specialist. Dr. Shah has been examined as Complainant Witness No.2/PW-2 and Dr. Saji Varghese has been examined as Opposite party Witness No.3/DW-3.
Now, it is pertinent to go through the written version of the parties as well as evidence on record. It is an admitted fact that the cataract surgery in the left eye of the complainant was performed by the Opposite party on 20.01.2011. The Opposite party has claimed that the standard of protocol was followed in pre-surgical stage. The Opposite party as his witness has stated in his cross examination dated 21.09.2016 that " prior to surgery we have not conducted, ECG, Chest X-ray, test for pulmonary obstructive disease, hemoglobin, lipid profile, urea creatinine and urine routine test of complainant Shri.S.K.Alagiri.
He has also stated in course of his cross examination on that date i.e on 21.09.2016 that "Prior to surgery the Blood Sugar of the complainant was not tested". Dr. Saji Varghese, DW-3 in his cross examination has stated that sugar test is paramount in any case of surgery. Opposite party as his witness has stated in his cross examination dated 21.09.2016 that "We have to identify the type of cataract before surgery. There are several types of cataract. In my written objection, I have not stated about type of cataract from which the complainant Shri.S.K.Alagiri was suffered from."
On going by the written version of the Opposite party and the evidence on record, specially, oral evidence of the Opposite party and Exhibit-80, we find that the pre-surgical medical work up in respect of the complainant/patient was not done at all and that too has been admitted by the Opposite party. The document which has been produced by the Opposite party does not reflect about the advice given to the patient on 10.01.2011 when he was examined by Opposite party before his cataract operation. Exhibit-A/1 and Exhibit-A/2 was subsequently filed by the Opposite party which he has stated in his cross examination saying that at the time of filing written objection he has not filed those two exhibits consisting of four (4) pages. These two exhibits bear post operative instruction given by the Opposite party. Exhibit -A/1 and Exhibit -A/2 are partially same document -12- but differs from each other, specially, regarding writing on the reverse page. Exhibit -A/1 reflects writing by different writer giving date 20.01.2011 and the Blood Pressure and pulse rate have been noted again though it was noted in the front page most probably by Doctor. Blood pressure was different. A date noting 21.01.2011 has been noted on the reverse side of Exhibit -A/1. On close look of the reverse side of the Exhibit -A/2, it appears that the said note gives the name of different medicine most probably written by Doctor. Once again some medicine was prescribed on 21.11.2011 as it appears from the reverse side of Exhibit-A/2 but the same medicine is in the reverse side of Exhibit-A/1. The front page of Exhibit-A/1 does not bear any note giving date 21.01.2011 but the same is there on the front page of Exhibit -A/2. Those documents have been produced subsequently without the permission of the Commission, even without drawing attention of the Commission. The tenor of writing of Exhibit-A/1 and A/2 speaks a volume about its genuiness of preparation as well as writing by Doctor or someone else in course of treatment or otherwise of the complainant at Rohin's Eye Hospital.
Exhibit-A displays that the sticker of the lens has been pasted on it. That document was prepared on 10.01.2011 i.e the date when the complainant visited the hospital for his eye check up. It is very surprising to note that the lens packet was claimed to have been opened on 20.01.2011 at the time of cataract surgery of the complainant but the sticker find its place on a document/treatment sheet which was prepared on 10.01.2011 but not on the document/treatment sheet prepared on 20.01.2011.
It is an admitted fact that the complainant was referred to Rajan Eye Care Hospital, Chennai by the Opposite party and at the time of reference only referral letter was handed over to the complainant for producing it before that hospital. The referral letter shows diagnosis of post operative Endopthalmitis, intra vitreal vancomycin given and vision was Pl+PR in all quadrants of left eye. The dose of vancomycin and other standard medication for Endopthalmitis has not been mentioned in the referral letter by the Opposite party. The complainant has stated that except referral letter no other papers and discharge summary was given to him for producing the same before the hospital at Chennai. Dr. Rajan as a witness/DW-3 has stated that except referral letter (Exhibit-3) they did not receive any other documents from Dr. Rohinder Lall.
-13-Exhibit-A/1 and Exhibit-A/2 discloses the advice of O.P in respect of pre-operative stage. These two exhibits were not filed along with the documents which were filed at the time of filing written objection. These documents appear to have been created subsequently with the intention to save the Opposite party from his carelessness and negligence in giving advice to the complainant which were required to be followed in pre-operative stage. The document filed by the Opposite party which are part of MRD No.876-T is silent regarding the vital investigation as noted down above vide Exhibit-80. The conduct of the Opposite party is an example of non application of mind for taking care of a patient, here complainant which an ordinary skill and knowledgeable person/Dr. will not do. He is careless and at the same time negligent as he has not given discharge summary and even a scrap of document i.e treatment sheet of complainant of his Eye clinic starting from 10.01.2011 to 22.01.2011 when he referred him to Rajan Eye Care Hospital at Chennai. He has only given a referral letter and that too is silent regarding the dose of Vancomycin and other standard medication for Endopthalmitis.
The treatment given by the hospital at Chennai was practically a de- novo treatment to deal with post operative Endopthalmitis of complainant. The Dr. of the hospital was in dark about the mode of treatment and the use of medicine with its proper dose given to the patient/complainant in pre- operative, operative and post operative stage. The evidence of DW-2 Dr. Mohan Rajan categorically spelt out that "Except referral letter (Exbt.-3) we did not receive any other document from Dr. Rohinder Lall".
In the written argument filed on behalf of the Opposite party, it has been stated (para-5) that "complainant was diagnosed suffering from immature senile cataract (IMC) on slit lamp examination which itself is a type of cataract"
but the Opposite party in his evidence has stated that "we have to find the type of cataract before surgery. There are several type of cataract. In my written objection I have not stated about the type of cataract from which the complainant Shri.S.K.Alagiri was suffering from. Prior to surgery, we have not conducted ECG, Chest X-Ray, test of pulmonary obstructive disease, hemoglobin (Hb), lipid profile, urea, creatinine and urine routine test of complainant Shri.S.K.Alagiri. I have not obtain any certificate from a general physician that the complainant was fit to undergo cataract surgery". In the -14- written argument submitted from the side of the Opposite party it is stated that "the patient undergoing cataract surgery were advised to undergo blood and other investigations on the case to case basis since hospital did not do above investigation, the report brought by patient were handed over to the patient after seeing the report. The Rajan Eye Care hospital did not had facilities for carrying biochemistry and hematology investigation also for ECG, X-Ray etc." (vide para -2).
The documents (MRD 876-T) filed by the Opposite party does not show that any sought of advice regarding Biochemistry, hematological investigation, ECG, X-Ray etc was given to the patient. The documents is also silent about the production of any report by the complainant/patient before the Opposite party/Doctor, perusal of it and any note to that effect in the treatment sheet/documents produced by the Opposite party. In the written objection, it has been stated that A-Scan was done before the cataract surgery of the complainant but there is no iota evidence to that effect and the treatment sheet is silent.
It is surprising to note that hospital at Chennai finally opined that the complainant has retinal detachment. B-Scan of the complainant was not done. Carrying out cataract surgery without conducting the test of B-Scan, which was pre requisite for knowing exact status of eye as well as of retinal detachment is negligence. It has been held in the case "Pahwas (Dr.) V.Surindra Mohan Ghose, 2004 (11) CLD173 (NC).
Therefore, the final opinion of the Doctor of the Chennai bears a question mark specially when the report submitted by the Committee (Exhibit-80) is silent regarding the same. The Opposite party has stated in his evidence " so far I know that Dr.Mohan Rajan is the owner of Rajan Eye Care Hospital. Dr. Rajan is my friend". DW-2 Dr. Rajan in his cross examination has stated "Dr. Rohinder Lall is my colleague. He is my friend. On his invitation I have come to Port Blair on several occasions. Dr. Rohinder Lall used to refer cases to my hospital/to me. I am supporting the case of Dr. Rohinder Lall". It reveals practically a give and take policy i.e Opposite party will send patient of these islands to DW-2 and in turn the DW-2 will support him grinding the ill fated patient. It is a very dangerous tie-up.-15-
DW-2 in his evidence has stated that cataract surgery is a major surgery. Before cataract surgery, we have to find the type of cataract. There is a protocol of test to be conducted to conduct major surgery and that protocol has been mentioned in Exhibit -A/19. At the time of surgery, the complication may arise if the test as per protocol duly mentioned in exhibit A/19 is not followed. He has stated that his hospital is a Super Specialty Hospital. He does not know whether the hospital of Dr. Rohinder Lall is a Super Specialty Hospital. Apparently, the protocol which has been followed at the hospital at Chennai has not been followed by the Opposite party, then how and on which logic Dr. Rajan can say Opposite party cannot be blamed for complication of the surgery of the complainant/patient.
It is observed by the National Commission in the decision of H.S. Sharma Vs Indraprastho Apollo Hospital(2007)(2)CPR 76 (NC) that "over busy medical practioners are expected to devote some time and see the post- operative treatment is also given properly and care is taken of the patient in accordance with the requirements of the disease or operation. It is their duty. If this is not done, it is likely to create complications after operation which may on occasion be fatal or affect the health of the patent. Not doing so or not attending the patient after operation or delay in giving appointment, in case of complications, would certainly be deficiency is service.
Further, discharge summary must also contain treatment chart at the pre-operative and post operative stages. It must also contain details of what precautions are required to be taken by the patient."
In the case of Sushma Sharma and others v. Bombay Hospital and others, 2007 CTJ 594 (NC), it has been observed by the National Commission that surgery conducted without any pre-operative assessment and evaluation is deficiency in service.
In the decision reported in R.K.Akhouri (Dr.) Vs Sri K.N.Lall, 2003 CTJ 761 (NC), it is observed by the National Commission that " where a complainant was operated for Cataract and lost his vision after operation, National Commission found the Dr. to be negligent and careless and directed him to pay compensation of Rs.5,55,000".
Deficiency under Consumer Protection Act has been defined in Section 2 (1) (g) of Consumer Protection Act, 1986 which reads:
-16-"(g) "deficiency" means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;"
Test for determining deficiency of service is same as the test for determining negligence:
A determination about deficiency in service for the purpose of Section 2(1)(g) has, to be made by applying the same test as is applied in an action for damages for negligence.
The Supreme Court, in Indian Medical Association v. V.P. Shantha,1 while holding that the medical service was covered by the definition of 'service' in Section 2(1)(o) of Consumer Protection Act discussed in detail the meaning of 'deficiency in service' with reference to medical service and the reliefs that can be granted in case of deficiency in service by medical professionals. It observed, "Section 14(1)(d) would, therefore, indicate that the compensation to be awarded is for loss or injury suffered by the consumer due to the negligence of the opposite party. A determination about deficiency in service for the purpose of Section 2(1)(g)has therefore, to be made by applying the same test as is applied in an action for damages for negligence".
Violation of Indian Medical Council Regulations, 2002:
The Medical Council of India in exercise of the powers conferred under Section 20(A) read with Section 33(M) of the Indian Medical Council Act, 1956, with the approval of central Government made the "Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002" relating to professional conduct, etiquette and ethics for registered medical practitioners, which came into force on 6th April 2002. In Rule 3.6 of the Regulation, it is specifically mentioned that when a patient is referred to a specialist, by the attended physician, a case summary of the patient should be given to the specialist who should communicate his opinion in writing to the attending physician. In the instant case, the Opposite party has not given any case summary to the Doctor of Chennai at the time of referring the patient. Not complying with provisions dealing with medical practitioners' duties towards patient's amounts to deficiency in service.-17-
To sum up -
• The report submitted by the committee is valid and that has been submitted following the decision of the Hon'ble Supreme Court in Martin D'Souza case.
• There was serious lacking in pre surgical medical work up and investigation.
• Patient was discharged after one hour of the operation. The discharge summary was not given.
• The record/treatment charts have been clearly manipulated. There was deficiency of service on the part of the Rohin's Eye Hospital and its Doctor, the Opposite party.
• The present status of the patient - "permanent vision loss from left eye which was subjected to cataract surgery by the Opposite party." • The Opposite party was negligent and careless in handling the patient/complainant in pre-operative, operative and post-operative stage.
It is well recognized that eyes are very sensitive organ. No yardstick can be used for determining the trauma and the loss of an important organ like eye. The "vision-loss" is the loss of eye. The complainant has travelled from Islands to mainland for a period of 11 months with a hope that his vision in the concerned eye will come back after treatment. He is an old man and had to take companion whenever he had visited eye hospital at Chennai. The family-fabric of the complainant had been seriously disturbed and damaged due to his such visit and treatment at mainland. Not only he but his entire family had to cope with continuous mental agony during the course of his treatment.
In Balaram Prasad (Dr) V. Dr. Kuanal Saha reported in IV (2013) CPJ (1) (SC), the National Commission has stated the principles of law for assessment of compensation:
(i) The principle for just and reasonable compensation is based on 'restitutio in integrum' that is, the claimant must receive sum of money which would put him in the same position as he would have been if he had not sustained the wrong.-18-
(ii) A patient who has been injured by an act of medical negligence has suffered in a way which is recognized by the law and by the public at large-as deserving compensation. To deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice.
(iii) The aspect of inflation can be taken into consideration in awarding compensation.
(iv) A claimant is entitled to interest on the compensation amount from the date of filing of the original complaint up to the date of payment of entire compensation.
(v) It is the duty of the Tribunals, Commissions and the Courts to consider relevant facts and evidence in respect of facts and circumstances of each and every case for awarding just and reasonable compensation.
The complainant has claimed that he had to incur Rs. 3,61,537.45/- towards travelling, boarding and lodging and medical expenses. He has filed documents to substantiate that claim. We have meticulously scanned the documents which have been exhibited and found that the claim of Rs.3,05,593.45/- is supported by substantive documentary evidence. The aforesaid expenditure is systematically taken and a copy of calculation sheet with reference to exhibit Nos. has been kept in the record.
Considering the fact and circumstances, present status of the left eye/permanently blind, mental agony, harassment of the complainant and his family members as well as aspect of inflation, we find it just and proper to award a compensation of Rs.3,05,593.45/-(Rupees Three Lakhs Five Thousand Five Hundred Ninety Three and Forty Five Paisa Only) towards travelling and medical expenditure. We also think it judicious to award a further compensation of Rs.3,00,000/-(Rupees Three Lakhs Only) towards mental agony, harassment and loss of vision in left eye. The complaint has been filed on 14.03.2012 and the complainant is entitled to interest @ 6% per annum on the total awarded compensation i.e Rs. 6,05,593.45/-(Rupees Six Lakhs Five Thousand Five Hundred Ninety Three and Forty Five Paisa Only) from the date of filing of complaint till the date of payment to the entire compensation.
-19-The complaint stands allowed. No cost. The Opposite party Dr. Rohinder Lall is directed to pay the compensation amount within six weeks from date, failing which, the complainant is at liberty to have the redress as per law.
Supply copies of the judgment to the parties free of cost forthwith.
Member Member
President