State Consumer Disputes Redressal Commission
Muneeb Abdul Majeed Zubair vs Dr. Agarwal Health Care Ltd on 28 November, 2024
1
BEFORE THE TELANGANA STATE CONSUM ER DISPUTES
REDRESSAL COM M ISSION : HYDERABAD.
F.A.No.95 OF 2023
AGAINST ORDERS IN C.C.241/2022
DISTRICT CONSUM ER COM M ISSION-III, HYDERABAD
Between:
Muneeb Abdul Majeeb Zubair,
12-2-800/445, Dilshadnagar Colony,
Mehdipatnam, Hyderabad-500 028, T.S.,
Mobile: 9949508366
Email : [email protected].
.......Appellant/Complainant
And:
Dr.Agarwal Health Care Ltd.,
Dr.Agarwal's Eye Hospital,
Pillar No.41, Mumtaz Complex,
Rathi Bowli Circle, Mehdipatnam,
Hyderabad- 500 028, T.S.,
Email : [email protected]
Phone : 9030952401
........Respondent/Opposite Party
Counsel for the Appellant/Complainant : Party-in-person
Counsel for the Respondent/Opposite Party : M/s King Stubb &
Kasiva
QUORUM :
HON'BLE SMT. MEENA RAMANATHAN, I/c PRESIDENT
&
HON'BLE SRI. V.V.SESHUBABU, MEMBER - (JUDICIAL)
THURSDAY, THE 28th DAY OF NOVEMBER
TW O THOUSAND TW ENTY FOUR
**********
Order : (PER HON'BLE SRI. V.V.SESHUBABU, MEMBER - JUDICIAL)
1.The appeal is filed by the complainant, aggrieved by the dismissal order, dated 06.12.2022 in CC 241/2022 of District Consumer Commission-III, Hyderabad,
2. The brief averments of the complaint are that the complainant is aged 73 years and suffering with multiple co- morbidities like diabetes, hypertension, severe arthritis and restricted mobility; that having attracted by the advertisements of the opposite party, approached their Counselor Ms. Madhavi, who 2 explained all aspects including financials and informed that they would charge Rs.31,500/- per eye to conduct cataract surgery and handed over a written note giving details; that on 16.11.2021 when the complainant went to the hospital, drops were administered into the eyes for dilation and was asked to wait for investigations and for ECG; that after 3 hours, he was informed that a technician failed to turn up, asked him to come again on 19.11.2021; that on 19.11.2021, he was subjected to investigations, for which he was made to wait for 02 hours and he was asked to lie down on the ECG table; that the operation on the left eye, surgery was performed by Dr.Aparna Ayyagari, after administering local anesthesia on the operation table; that immediately after the surgery, he was asked to leave home and come for review on the next day; that he was not allowed in the hospital to stay for few minutes; that on the next day, one untrained lady removed the bandage and examined the eye with the device and informed that the vision was blank; that he was referred to the surgeon who said that the eye will become normal after sometime; that after reaching home, the complainant was again called by the surgeon to the hospital and again told the same thing as earlier; that Counsellor Ms. Madhavi, repeatedly made calls to the complainant to come for right eye surgery, as he can resume normal routines that on the advice of the Counsellor, the complainant went to a nearby pharmacy and purchased medicines and involved in the two wheeler accident and suffered fractures and that he was treated in Olive Hospital and Mahavir Hospital for the fractures and due to the same, the right eye surgery was post-poned and complications arose in the left eye; that despite informing opposite party about the problem to the left eye, it was not given any attention ; that the complainant suffered with discomfort, for which he approached two more ophthalmology surgeons, who stated that operating surgeon alone has to treat him; that having not satisfied with their approach, the complainant went to opposite party and his right eye surgery was done on 27.12.2021; that the complainant was made to sit in a small cabin of 8ft.X6ft. adjacent to the operation theatre, 3 but actually it was a store room and due to the same, the complainant suffered suffocation and went outside by removing all dress. After 1½ hour, the complainant was again brought back to the same room and administered with local anesthesia; that 45 minutes thereafter, he was taken to the operation theatre and then he complained of decrease in the anesthesia effect, but still surgery was performed by the doctors, directing the complaint not to move the eye ball; that immediately after the operation, the surgeon went away without meeting the complainant; that on the next day, the complainant came for review as he was suffering pain in the outer eyes , swelling, reddishness, but those issues was not answered by the surgeon and on the other hand stated that there were no way related to the surgery; that unable to bear the discomfort, the complainant approached Dr.Sree Ram Prasad Rao M.S., and Dr.Shilpa Basille, but they expressed their inability to give any treatment stating that the operating surgeon only has to address the problem; that the complainant went to Dr.Akbar's Eye hospital who also informed the same like earlier two doctors; that on 22.03.2022, the complainant went to renowned Govt. Eye Hospital, Hyderabad, who diagnosed the problem to the eye as drug allergy, but stated that it will be there for 04 months and then it will become alright; that on 04.01.2022, the complainant sent an email and hard copy was sent by Speed Post on 07.01.2022 to the opposite party alleging gross medical negligence in giving the treatment and maladministration of the hospital etc., for which no reply was given; then a legal notice was issued dated 10.03.2022 for which also there was no reply, hence, the complaint demanding compensation of Rs.5,00,000/- for the inconvenience caused to him, for not attending the issues whenever, raised and for maladministration of the hospital.
3. The brief averments of the written statement of Opposite Party are that the complaint is not maintainable either on facts or under law; that the complainant is put to strict proof of all the allegations made in the complaint, except, those that are 4 admitted; that allegations made against the counselor Ms.Madhavi, are false; that the issues raised by the complainant relating to the treatment of eyes are answered suitably; that the other allegations made against the hospital and maladministration are false to the core, for the reason that the opposite party is renowned hospital with several qualified doctors, operation theatre, rests rooms with advanced equipment's etc.; that with malafide intention to cause damage to the reputation of the opposite party with connivance of Dr.Sree Ram Prasad Rao M.S., and Dr.Shilpa Basille, the complaint is filed to make a wrongful gain ; that no surgery will be performed without investigation and ECG; that due to prevailing COVID period and as the hospital was working with limited staff, the complainant was asked to come for the investigations from 16.11.201 to 19.11.2021; that having satisfied with the investigation reports, surgery was performed on 19.11.2021 and was asked to come for re view on 20.11.2021; that having satisfied with the treatment provided by the opposite party, the complainant came for the right eye surgery and undergone the same, in the opposite party hospital on 27.12.2021; that, if the allegations are true and correct and if the maintenance of the hospital is so shabby, the complainant should not have approached the opposite party for the right eye surgery; that immediately, after 1 st surgery, the complainant was provided with material with do's and don't's and in probability, the complainant might not have followed the same; that there is no deficiency of service at all from any angle; that in the absence of any documentary evidence, the alleged maladministration cannot be countenanced; that the complainant having aged 72 years, should have engaged services of some other to purchase medicines from a pharmacy, that too, after subjected to the left eye surgery; that unless the complainant became alright or the left eye regained full vision, he should not have went to purchase the medicines on a two wheeler; that for the reasons better known to the complainant, he involved in a motor accident, for which, the opposite party is no way connected; that in the absence of any proof of negligence or deficiency of service, the complaint is liable for dismissal with exemplary costs.
54. Before the Commission below, complainant filed evidence affidavit as PW1 and also filed additional evidence affidavit. Ex. A1 to A32 are marked for the complainant. One Mr. Shreekant Meka, Sr.General Manager cum Authorized Signatory filed evidence affidavit as DW1 and got marked Ex.B1 to B14. Both parties filed their written arguments respectively. The opposite party also filed rejoinder.
5. The Commission below, settled the following points for discussion viz..:
Whether there is any medical negligence or deficiency of service on the part of the opposite party? Whether the complainant is entitled for the reliefs as prayed for?
To what relief?
6. Having heard both sides, the Commission below, basing on the material available on record, passed the order as stated supra. Aggrieved by the same, the present appeal is filed by the complainant with the following grounds:
The order of the Commission below is contrary to law, weight of evidence and probabilities of the case. The order of the Commission below is illegal and against the principles of natural justice and passed without appreciating documentary evidence available on the record.
The Commission below grossly erred in considering the additional evidence affidavit filed by the opposite party and also its documents.
The Commission below failed to observe that RW1 cannot depose relating to the surgeries and the treating doctor alone competent to do so; and when the treating doctor not filed the affidavit, e vidence affidavit of RW1 cannot be considered.
The Commission below unnecessarily attached importance, that the complainant expressed eagerness 6 to go for surgery during the COVID period, in fact the complainant has no such urgency and he informed the same, to the counselor.
That the Commission below failed to observe that COVID test was not performed on the complainant and unnecessarily, Dr.Sree Ram Prasad Rao M.S., and Dr.Shilpa Basille, was blamed.
The Commission below failed to appreciate that the complainant was subjected to 2nd operation even though the anesthesia was decreasing and even the complainant observed movements of the blade in the eye and he was subjected to surgery for 1½ hour after administering the anesthesia.
The Commission below failed to observe that the surgery to the right eye vide documents at Pg. No.'s 25, 43 and 47, shows three different times, surgery was performed and as per them, the complainant was discharged even before the surgery.
With these grounds and others that will be urged at the time of arguments, requested to allow the appeal and so also the complaint as prayed for.
7. Now the points for determination in the appeal are :
(1) W hether there is any deficiency of service and unfair trade practice on the part of the opposite party? (2) W hether the order under appeal is sustainable as per law? (3) Relief?
8. Both sides filed written arguments in the appeal. Appellant alone advanced arguments in person. No oral submissions are made by the Respondent. For the sake of convenience, the parties will be addressed as they arrayed in the impugned order.
9. POINTS 1 to 3: Admittedly, PW1 as per the complaint filed in the year 2022 is aged 73 years. The first surgery was performed i.e. cataract to the left eye on 19.11.2021. It means by the time of 7 surgery, he was aged about 72 years. In the complaint, PW1 suppressed his occupation. In the written version, it is submitted that PW1 is highly qualified and employed as Dean in IIBF and having gone through all the requirement details about the opposite party, approached the hospital for immediate cataract surgery. The same is not denied by PW1, except, stating that he informed the opposite party that there was no necessity for him to undergo immediate surgery. It may as it be there.
10. It is important to note that, after performing investigations and ECG and having satisfied with the condition of PW1, surgery was performed on 19.11.2021 and he was asked to come for review on the next day. Ex.A1 shows that on 27.07.2021, the eye package details were provided to PW1. Ex.A2 shows that he was subjected to investigations and tests on 27.07.2021; when surgery was performed for the first time on 19.11.2021, means the allegations of PW1 that Counsellor Ms. Madhavi, pressurized him to come for surgery, is nothing but a false statement.
11. Ex.A3 & A4 are bills issued in the name of PW1 for performing the tests and for consultation charges. Ex.A5 is the post-operative medication dated 19.11.2021 for 05 days given by Dr.Aparna Ayyagari, surgeon. Ex.A6 is the credit bill, dated 19.11.2021 and Ex.A7 is the Pharmacy bill of the same date; Ex.A8 are the pre-operative instructions. Ex.A9 is the discharge summary and it shows left eye cataract was performed and he was asked to come for review on the next day on 20.11.2021. Ex.A10 goes to show that PW1 was charged for optical bill for Rs.390/-; ofcourse, there was no notes on 20.11.2021 to show whether PW1 made any complaints? If so, is he provided with any medication to answer any such complaints. No document is filed by PW1 to establish that he made any complaints on 20.11.2021 and if, they are not attended, what he did immediately by approaching any other doctor.
812. Ex.A12 goes to show that on 29.11.2021 PW1 went to Olive Hospital, having involved in road accident while driving a two wheeler. Nothing is mentioned therein, regarding any complaints to the left eye. As per Ex.A13 & A14, PW1 was treated in Mahavir Hospital, Mehdipatnam for the fractures.
13. No documents is available to show what type of treatment PW1 was taken after left eye cataract operation to the right eye which was performed on 27.12.2021. As rightly, argued by the opposite party, there is no requirement for any patient to undergo the right eye cataract surgery, where he has undergone the left eye cataract surgery; that too, when service is very bad. PW1 approaching the same hospital for the right eye cataract surgery, requires to draw an inference that, he was satisfied for the services rendered by the opposite party for the left eye surgery.
14. No document is available or filed by PW1 to show that by the time he approached for right eye surgery on 27.12.2021, any difficulty was there to the left eye. He was subjected to right eye surgery on 27.12.2021 and in the discharge summary nothing is whispered about any complications to the left eye. He was discharged on the same day with a request to come for review on the next day. No issues are raised by PW1 regarding the after effects of right eye surgery by approaching any doctors and getting any treatment from others, leave alone the opposite party hospital.
15. Ex.B2 is the operation theatre top sheet which shows that the operation on the left eye was performed on 19.11.2021 and time of surgery was fixed at 09:00 A.M. and what power of IOL was inserted etc. Check list was prepared on 19.11.2021 for the surgery. Consent letter was obtained from PW1. PW1 signed in the consent letter stating that "this is a rescue operation. The visual result cannot be fully gua ranteed, because of suspected (existing nerve) corneal damage (depending on the case)".
916. Consent was also obtained for local anesthesia and all the documents shows how the surgery was performed and at the time of discharge, the condition is noted as 'good'.
17. Ex.B3 relates to the right eye surgery. It also went on smoothly as per the documents which are filed along with Ex.B3. The Consent was taken and similar consent was taken like to the left eye by PW1. He was admitted at 11:41 A.M. and discharged on the same date at 02:15 P.M. on 27.12.2021 and was asked to come for review on the next day at 05:58 P.M.
18. Ex.B6 are the photographs of the various rooms in the hospital and they are maintained in a decent and healthy manner. The photographs at the internal page 60 of the record in all probability relates to the anti-room to the operation theatre as contended by PW1. The perusal of the photo goes to show that there is a cylinder with a rack provided with few files and surgical dress etc,. Another photo at Sl.No.67 which appears to be next room to the operation theatre is in a neat condition. In the absence of any documentary evidence filed by PW1 to show the shabby maintenance of the hospital rooms and e ven though, the photos, under Ex.B6 are filed subsequently, nothing can be inferred that hospital was mal-administered. Therefore, we are of the view that the Commission below having gone through the records, properly appreciated the facts and law and dismissed the complaint. There is no reason to interfere with the said order.
19. Added to the same, no expert is examined to prove that the operation was not performed as per protocol/standard both in the 1st & 2nd instances to left and right eye respectively. RW1 was not cross examined. No effort was made to secure the presence of the surgeon who performed operation to establish that post-operative care was not properly addressed, despite the complaints raised by PW1. No piece of paper is available from Dr.Sree Ram Prasad Rao, M.S., and Dr.Shilpa Basille, to show that 10 PW1 approached them with complication to the left eye due to the improper treatment given by the opposite party. No prescription given by reputed Govt. Hospital Surgeon is filed to show the complaints made by PW1 before the said doctor. The Respondent relied upon the some case law i.e. (i) 2016 SCC Online NCDRC 1652 in Dr.Deepak Kumar Satsangi & Anr. vs Sanjeevan Medical Research Centre (P) Ltd., and Ors.; (ii) 2022 SCC Online NCDRC 112 in Dr.Sachin Tyagi vs. Sultan Mohd. Khan, etc. Both these cited cases are supporting the version of opposite party. For all these reasons, the points are answered against the appellant and appeal is liable for dismissal without costs.
20. In the result, the appeal is dismissed without costs by confirming the order dated 06.12.2022 in CC No.241 of 2022, passed by the District Consumer Disputes Redressal Commission- III, Hyderabad.
Dictated to the Stenographer and typed by her on the System and corrected by me and pronounced by us in the Open Court on this the 28th day of November' 2024.
Sd/- Sd/-
I/c PRESIDENT M EMBER-JUDICIAL
Dated : 28.11.2024
*AD