State Consumer Disputes Redressal Commission
Smt. Kavita Khanna vs Ms Aditya Eye Care And Opticals Pvt.Ltd. on 27 August, 2018
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 27.08.2018 Complaint Case No. 132/2004 In the matter of: Smt. Kavita Khanna w/o./ Sh. K. B. Khanna R/o. MG-1/12, Vikaspuri, New Delhi-110018 : Complainant Versus M/s. Aditya Eye Care & Opticals Pvt. Ltd. F-485, Vikas Puri, New Delhi : Dr. Laxmi Pal Proprietor M/s. Aditya Eye Care & Opticals Pvt. Ltd. F-485, Vikas Puri, New Delhi : Dr. R. S. Pal C/o. M/s. Aditya Eye Care & Opticals Pvt. Ltd. F-485, Vikas Puri, New Delhi Opposite Party(s) CORAM : N P KAUSHIK : Member (Judicial) 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes Cases relied upon: 1. Smt. Savita Garg v. The Director, National Heart Institute, (2004) 8 SCC 56, 2. Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and others, 2009 (2) CPJ-61 (SC), N P KAUSHIK - MEMBER (JUDICIAL) JUDGEMENT
Smt. Kavita Khanna went to M/s. Aditya Eye Care and Opticals Pvt. Ltd., F-485, Vikaspuri, New Delhi (in short OP1) on 19.02.2004, for operation of cataract in her left eye. Dr. Laxmi Pal was the Proprietor of OP1 (in short OP2). Dr. R. S. Pal (in short OP3) was actually working in Eye department of ESI Hospital, Basaidarapur New Delhi and happens to be the husband of OP2. Complainant paid an amount of Rs.30,000/- initially for operation and consultancy on 17.02.2004. The charges were meant for examination prior to operation, fees for nursing home, medicine and post operation care etc. No receipt was issued. On 19.02.2004, OP3 conducted cataract surgery and implanted IOL (Intra Ocular Lens). Contention of the complainant is that before conducting surgery, mandatory tests were not conducted by the OPs. Requisite facilities were also not available in the OP1 nursing home.
After the surgery there was heavy bleeding in the operated eye. It could not be controlled uptil 26.02.2004. Another operation was conducted by the same doctor on 01.03.2004 but the condition of the patient deteriorated day-by-day. She visited several senior eye surgeons and hospitals like MKW Rajouri Garden New Delhi and AIIMS. Doctors of the said hospitals opined that there was negligence on the part of the doctor who conducted surgery and nothing could be done as there was a total loss of vision. Retina had been detached. Even stone eye could not be planted. Complainant thereafter again went to OP2 who expressed his helplessness. Finally she lodged a complaint with the authorities stating that negligence on the part of treating doctor made her blind of the left eye at the age of 43 years. She served a legal notice dated 30.06.2004. Complainant alleged that she had spent more than Rs.2.5 lakhs in a period of 9 months for check-ups, consultancy, medicines and conveyance charges.
On the basis of the aforesaid facts, complainant claimed an amount of Rs.28 lakhs towards compensation.
All the OPs filed a joint reply in their defence and submitted that before conducting the operation on 19.02.2004, tests necessary for surgery were conducted. Complainant was having a normal blood pressure and blood sugar. She was discharged after the operation on 19.02.2004 itself. She was asked to come for post operation checkup on 20.02.2004. But she did not come. OP3 visited her at her house on humanitarian grounds. He found that the results of operation were successful. On 26.02.2004, she again came to the premises of OP1 with high blood pressure, high fever and vomiting. The symptoms had affected the operated eye and caused intraocular haemorrhage with expulsion of lens and ocular contents. She was advised that the symptoms were not medically palatable and their prevention was of top priority before undergoing another operation. She was admitted in Jeevan Nursing Home Delhi for recovery. After her condition became stable and fit for operation, second operation was done on 01.03.2004. She was discharged after giving post operative instructions.
Submission of the OPs is that there was no complication after the first operation of the left eye from 19.02.2004 till 25.02.2004. The complainant had stone in the gall bladder and also had urinary infection. She had high fever. Because of this, her blood urea and blood pressure had shot up to a very high level. It resulted in continued vomiting, haemorrhage and expulsion of implanted intraocular lens. Had she been careful on the night intervening 25-26.02.2004, the situation could have been avoided. It was a case of negligence on the part of the complainant. She ought have approached OP3 immediately when she developed fever.
OPs further submitted that OP1 alone had charged an amount of Rs.7,500/- for carrying out surgery on 19.02.2004. No amount was charged for the surgery conducted on 01.03.2004. OPs submitted that the complainant had taken entire files containing documents herself after 01.03.2004 on the pretext of keeping the same in her records.
In relation to her condition, OPs submitted that there had been no continuous bleeding from the eye on 19.02.2004 till the night intervening 25-26/02.2004. OPs admitted having conducted the second surgery on 01.03.2004.
Complainant filed rejoinder reiterating averments made in the complaint and denying the allegations of the OPs.
None had put in appearance for the OPs and affidavit by way of evidence had not been filed despite several opportunities. One of my Ld. Predecessors, vide orders dated 21.07.2006 closed the right of the OPs to file affidavit by way of evidence. Perusal of the record shows that an affidavit towards evidence sworn by OP3, Dr. R. S. Pal and dated 20.07.2006 lies on record. It is not diarised. It was not filed at the filing counter. Order sheets also do not indicate if the same was presented to the Court towards filing. It is not clear how this affidavit towards evidence (on behalf of OP3), crept into judicial records.
Written submissions were filed by the parties. This Commission vide orders dated 19.09.2017 directed the OPs to furnish certain information on affidavit. OPs failed to furnish any such information. No affidavit whatsoever was filed by the OPs in this behalf. Orders dated 19.09.2017 passed by this Commission run as under:-
"OPs to place on record an affidavit disclosing the educational qualifications of OP-3 i.e. Dr. R S Pal alongiwth the photocopies of his educational certificates.OP to place on record material in support of his contention that OP-3 was authorized to conduct the surgery of the eye.
OP No. 3 to also place on record material in support of his contention that as an employee of ESI he was entitled to do private practice, if so, whether in the present case the surgery was done in the charitable institution or a regular clinic named Aditya Eye Care and Optical Pvt. Ltd.Let the OP No.3 file instructions, if any, issued by the MedicalCouncil of India relating to his authorization to conduct eye surgeries.OP3 also to place on record the medical records relating to the eye surgeries conducted by the him on 19.02.2004 and 01.03.2004 alongwith the surgery notes.The abovesiad information be furnished by the OPs on affidavit."
On 19.04.2018 Ld. Counsel for the OPs Ms. Evanika Kapoor Advocate filed the report of Delhi Medical Council dated 22.06.2006. The same is reproduced below:
"The Delhi Medical Council examined a complaint of Shri K.B. Khanna, alleging medical negligence on the part of Dr. R.S. Pal in treatment administered to complaint's wife Smt. Kavita Khanna (referred hereinafter as the patient), resulting in loss of vision in her left eye. The Council perused the complaint, reply of Dr. R.S. Pal, documents on record and heard the following in person:
Shri K.B. Khanna Smt. Kavita Khanna Wife of the complainant Dr. R.S. Pal Mrs. Kavita Khanna was operated for Left Eye cataract on 19.02.04 at Aditya Eye Care & Opticals Pvt. Ltd. by Dr. R.S. Pal. The operation was uneventful and the patient was recovering till 26.2.04 when she presented with severe headache, ill-health, bleeding from the operated eye & loss of vision in that eye. After examination, a diagnosis of Suprachoroidal Haemorrage was made alongwith accelerated hypertension secondary to infection. After necessary treatment at Jeevan Jyoti Nursing Home, the patient recovered from other symptoms but the vision did not improve even after surgical intervention by Dr. R. S. Pal again at Aditya Eye Centre on 01.03.04. Mrs. Kavita is blind presently in her Left Eye.
It has been observed that no record of investigation, preoperative check-ups, operation note, postoperative check-ups & directions were maintained in respect of the patient by Dr. R.S. Pal. After repeated directions from the Council, Dr. R.S. Pal submitted photocopies of consent forms only having scribbling of BP & Blood Sugar reports at one corner of the consent form.
It has been found that Aditya Eye Care & Opticals Pvt. Ltd., where the operation was performed was neither registered with Directorate of Health Services nor have they applied for registration. Dr. R.S. Pal has been found undertaking eye surgeries in a place which does not have the approval of the appropriate authorities, therefore availability of adequate infrastructure, equipments etc. remain uncertain.
Dr. R.S. Pal has submitted a "no objection certificate" from E.S.I Hospital, Basai Darapur, Ring Road, New Delhi (no. DM (H)-A/19/13/139/88-Med. /8306 dated 28.04.95) issued by the Medical Superintendent for working at Shankara Charitable Trust. However Dr. R.S. Pal admitted to having received Rs. 7500/- for the operation which he claims to have deposited with the Charitable Trust which is a part of the activities of the Aditya Eye Care & Opticals Pvt. Ltd., a private limited company.
Dr. R.S. Pal has been found wanting in:
Not keeping proper records of cataract surgery conducted on Mrs. Kavita Khanna.
Dr. R.S. Pal has been working at Aditya Eye Care & Opticals Pvt. Ltd., Shankara Charitable Trust, F-485, Vikas Puri, New Delhi - 110018 which is not registered with Directorate of Health Services.
There is a need to review the No Objection Certificate issued by ESIC to Dr. R.S. Pal for working with Shankara charitable Trust vis-a-vis its relationship with Aditya Eye Care & Opticals Pvt. Ltd. which is a private company headed by wife of Dr. R.S. Pal and where he admitted to have received Rs. 7500/- on behalf of the trust.
In the light of the findings, made hereinabove, a warning is issued to Dr. R.S. Pal, censure to be recorded in the State Medical Register of Delhi Medical Council. A copy of this Order to be sent to Directorate of Health Services and Director E.S.I.C. to look into the irregularities, committed by Dr. R.S. Pal, as observed in this Order.
Complaint stands disposed.
By the Order &in the name of Delhi Medical Council Sd/-
(Dr. R.N. Baishya) Secretary"
I have heard at length the arguments addressed by the Counsel for the complainant Sh. Gaurav Kochhar and counsels for the OPs Sh. Sandeep Kapoor and Ms.Evanika Kapoor. Stand taken by the OPs is that the complainant did not turn up for post-operative check-up on 20.02.2004. On her visit to OP1 on 26.02.2004, her blood pressure was found high. She also had high fever and vomiting. It affected the operated eye and caused intraocular haemorrhage with expulsion of lens and ocular contents. Ld. Counsels for the OPs argued that after the second operation on 01.03.2004, complainant was advised to consult Vitreo Retinal Eye Surgeon as there was earlier vitreous haemorrhage to which no attention was paid by the complainant. Complainant had high fever because of stone in gall bladder, high blood urea and urinary infection. Blood pressure had gone high. It caused haemorrhage and expulsion of lens and ocular contents.
In their written submissions, OPs submitted that the complainant had signed a consent form. Had she disclosed about her having stone and urinary infection, she might have been sent to the specialist. The damage to the left eye occurred because of the 'negligence' on the part of the complainant.
Refuting the allegations levelled by the OPs, complainant submitted that due to gross negligence in performing operation, Medical Council of India had initiated an inquiry upon the OPs. Complainant submitted that the plea in relation to submitting 'consent form' was false and fabricated. OPs had fabricated the 'consent form' for which she had lodged a complaint against the OPs with the concerned Police Station.
Crucial question that arises in the matter is whether medical record relating to the surgeries in question is in the possession of the OPs or the complainant. OPs in their written version stated that the complainant had taken the entire file containing the documents after 01.03.2004 on the pretext of keeping the same in her records. OPs have not stated as to on which date specifically the said file was allegedly taken by the complainant. No receipt or acknowledgement in token of having received the file, was taken by the OPs. No such plea has been taken by the OPs in their replies to the legal notice (reply dated 30.07.2009). Plea thus raised by the OPs is devoid of merits. Delhi Medical Council while holding the OPs guilty of not keeping the records of cataract surgery and working in a non-registered clinic observed nothing on the point of 'negligence'. Delhi Medical Council however issued a warning to Dr.R.S.Pal OP3. It also directed 'Censure' to be recorded in the State Medical Register of Delhi Medical Council. 'No objection certificate' allegedly issued by ESIC to OP3 was also held as requiring 'review'. Clearly, OPs concealed the medical records of both the surgeries as its production would have gone against them.
OPs have taken different stands in relation to the causes of broken stitches and coming out of the ocular contents. OPs in their written version stated that the complainant failed to turn- up for post operative follow-up. At another place they attributed the cause to stone in gallbladder and urinary infection resulting into high blood pressure. No records whatsoever have been filed in relation to high blood pressure. In reply to the legal notice (para 8), OPs stated that the difficulty arose on account of forced injury and inadvertent rubbing of the operated eye. OPs made an attempt to shift the blame but by way of taking different stands.
Complainant filed a complaint in the police station alleging fabrication of the 'consent form'. Nothing on record suggests that the complainant was investigated for blood pressure or blood sugar before conducting the cataract surgery.
Admittedly complainant was blinded of her left eye. There is no record of the surgeries performed by the treading doctor. Patient had gone to OP1 hospital simply with a complaint of cataract. Now the burden is shifted on the OPs to satisfy that there was no negligence on their part. In the case of Smt. Savita Garg v. The Director, National Heart Institute, (2004) 8 SCC 56, Supreme Court held as under:
"Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital.It would be too much of a burden on the patient or the family members to undertake searching enquiry from the hospital to ascertain the names of treating doctors or the staff and to show who was responsible of the death.The hospital, which is in better position to disclose what care, was taken or what medicine was administered to the patient."
In the case of Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and others, 2009 (2) CPJ-61 (SC), Supreme Court held as under:
"Once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts to the hospital or to the attending doctors and it is for the hospital or the attending doctors to satisfy the Court that there was no lack of care or diligence."
What happened in the operation theatre, only OP3 Dr. R.S. Pal could explain. Patient's relatives had no access to the operation theatre. OP3 has referred to above has taken shifting stands and failed to explain the coming out of the ocular contents from the eye. It is a clear case of 'medical negligence'.
As discussed above OPs deliberately withheld their records as the same would have gone against them. An adverse inference, therefore, has to be drawn against the OPs. OP3 failed to place on record his educational certificates showing his competence to conduct eye surgery. They also failed to disclose if the surgery was done in the charitable institution or in the regular clinic i.e. OP1. Be that as it may, Delhi Medical Council held that OP1 or OP2 were not registered with Directorate of Health Services. OPs are clearly guilty of 'medical negligence'.
Complainant is a house wife of 43 years of age. Applying the standards of the income in respect of a house wife adopted by Motor Accident Claims Tribunals and the 'multiplier', I am of the view that compensation to the tune of Rs.15 lakhs would meet the end of justice. This amount takes care of the expenditure incurred by the complainant in OPs' clinic and at other places. Accordingly all the three OPs are directed to pay to the complainant an amount of Rs.15 lakhs (rupees fifteen lakhs only) jointly and severally alongwith interest @8% per annum from the date of filing of the present complaint till the date of its realization. A Copy each of these orders be sent to the following authorities:
Medical Council of India, Pocket- 14 , Sector - 8, Dwarka Phase-1, New Delhi - 110077, India Delhi Medical Council, Room No.308A, 3rd Floor, Administrative Block, Maulana Azad Medical College, Ahadur Shah Zafar Marg, New Delhi, Delhi 110002 Secretary to the Govt. of India, Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi-110011 Director, Directorate General of Health Services, Govt. of NCT of Delhi, F-17, Near Karkardooma Court, Maharaja Surajmal Marg, Arjun Gali, Vishwas Nagar, Shahdara, New Delhi, Delhi 110032 Medical Commission of India, 4th Floor, B Wing, Lok Nayak Bhawan, Khan Market, New Delhi, Delhi 110003 Complaint is accordingly disposed of.File be consigned to Records.
(N P KAUSHIK) MEMBER (JUDICIAL)