State Consumer Disputes Redressal Commission
Aditya Jyot Eye Hospital Pvt Ltd vs Mr Sampath Kumar on 7 August, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/14/741
1. Aditya Jyot Eye Hospital Pvt.Ltd.
Plot no.153, Road no.9
Major Parmeshwaran Road
Opp.SIES College Gate no.3
Wadala, Mumbai 400 031
2. Dr.Natarajan
C/o.Aditya Jyot Eye Hospital Pvt.Ltd.
Plot no.153, Road no.9
Major Parmeshwaran Road
Opp.SIES College Gate no.3
Wadala, Mumbai 400 031 .....Appellants
Versus
1.Mr.Sampath Kumar
402/3, Sunflower, Neelkanth Gardens
Govandi(East)
Mumbai 400 088
2. Dr.Vandana Jain
C/o.Aditya Jyot Eye Hospital Pvt.Ltd.
Plot no.153, Road no.9
Major Parmeshwaran Road
Opp.SIES College Gate no.3 .........Respondents
Wadala, Mumbai 400 031
BEFORE: Justice Mr.A.P.Bhangale, President
Mr.A.K.Zade, Member
ORDER
Per - Hon'ble Justice Mr.A.P.Bhangale, President
1. This appeal is directed against order dated 1st July 2014 passed by the Central Mumbai District Consumer Disputes Redressal Forum allowing consumer complaint No.48/2007 and directing the appellant to pay sum of Rs.1 lakh (Rupees One lakh) together with interest at the rate of 9% per annum to the complainant and a sum of Rs.10,000/- as costs of the proceedings within one month from the date of the order.
12. Facts which are material for deciding this appeal are as under:
Complainant is grandson of the Patient Laxmi Sundaram (since dead). He had taken his Grand Mother to the Hospital of OP for checkup of her eyes and the treatment and spent for her treatment in the Hospital. OP no.1 had diagnosed her for poor vision in the right eye and moderate vision in the left eye. OP no.2 recommended photodynamic therapy to follow a cataract procedure for the left eye. OP no.2 told that operation is feasible though she is of advanced age. Laxmi was admitted in the Hospital on 20.09.2006 and necessary tests were carried out. Prior to the operation her blood count was measured and it was found in order. OP no.2 was to perform surgery but on 21st September 2006, OP no.3 performed cataract surgery on the left eye of the Patient Laxmi though she was not apprised of the case by OP no.2. Complainant had no confidence over OP no.3. The surgery was painful for Laxmi. When the bandage was opened on 21.09.2006, it was found that the left eye was swollen and the patient could not see anything. OP no.3 told that there was some problem in the blood, which resulted in hemorrhage. Complainant consulted hematologist Dr.M. B. Agrawal, who performed test on 21.09.2006. It revealed that Patient had myeloid leukemia and blood platelet count was inadequate. It was 30,000 only when minimum required was 1,50,000, while OP no.1 Hospital had shown the blood platelet count as adequate. Thus, it was revealed that despite the fact that blood platelet count was inadequate, the cataract operation was performed though Patient was medically unfit. OP nos.1 to 3 were collectively negligent for the cataract surgery on 21.09.2006 which in fact failed. Complainant had prayed for compensation in the sum of Rs.5 lakhs (Rupees Five Lakhs) together with interest at the rate of 9% per annum from 21.09.2006 till payment.
3. The appellant had contested the complaint contending that the Forum below had no locus to entertain the complaint on the ground that the Complainant was grand Son of the Patient and had not furnished copy of the death Certificate or succession certificate or Letters of Administration and 2 that under Hindu Succession Act complainant was not her Class One heir to her movable and immovable assets. It is grievance of the OP Hospital that learned Forum below overlooked these submissions. Further, according to the Appellant the Complainant did not prove that the Patient had availed services of the OP for consideration for the treatment of the deceased. We are not impressed by these contentions as the complainant had taken his Grandmother to the OP Hospital for eye check up and treatment and hired services of the Hospital for consideration. As beneficiary on behalf of the patient, he was well within the definition of the term 'Consumer' as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 to raise a consumer dispute . There was evidence of the Complainant's bank account showing that he had spent for hospital charges.
4. Both the parties had filed documents/ affidavits in support of their contentions and also replies/counters. After considering the material before it, the District Forum came to pass the impugned order. Aggrieved thereby, the appellant is before us.
5. We have heard the learned counsel Mr.S.B.Prabhavalkar for the appellant and learned counsel Smt.Geeta Handa Khanuja for the respondent no.1/original complainant. With the help of both we have gone through the material on record.
6. The learned counsel for the appellant first submitted that the appellant could not at all be held guilty of any deficiency in service since all that was required to be done was done by the Hospital and the treating Doctors. According to him the expert opinion received from Grant Medical College and Sir J.J. Group of Hospital ought not to have been accepted as there was no Pathologist in the Committee of Doctors.
7. Learned Advocate for the respondent sought to submit that in fact it was the Appellant/ OP admitted in the written version that the Patient was examined by Dr.Nishikant Borse , retina consultant, who had found active 3 CNVM ( Choridal Nevacular Membrane ) in the right eye of the Patient and Platelet count was not performed as a protocol in the Patient, who had no previous history suspicious of bleeding disorder as revealed in the interrogatories. According to Hospital, the Patient was seen by Dr.Maya Kalelkar, physician on 20th September 2006 and gave her fitness certificate for Cataract surgery under local anesthesia, Dr.Radhika, anesthetist attached to the Hospital had received the Patient in Operation Theater and after assessing the stability of systemic parameters gave her pertibulbar block(injection ) around the left eye as per usual practice. Hospital claimed that the investigations were within acceptable limits and Patient was fit to undergo cataract surgery under local anesthesia. In Complete blood count test report the Patient Laxmi was found having lower counts in Hemoglobin, RBC count, PCV, and differential count for Neautrophills, Bosiniphills , Monocytes were lower, Lymphocytes were higher. On 27th September 2006 condition of the Patient was that blood was present behind PCIOL, so retina could not be seen and USG B scan revealed flat retina with echoes in the vitreous cavity. Her eye drops were modified and she was advised to review again after 10 days. According to OP no.3 on 27.09.2006 the bleeding inside and outside the eye had considerably reduced and physically the Patient was stable.
8. We have carefully considered rival contentions. The Complainant by showing the test reports and the contentions in defense could discharge the initial burden of proof that there was collective medical negligence on the part of the OPs in their omissions to check the Patient thoroughly before certifying her as medically fit to undergo cataract surgery on 21.09.2006, particularly when the Patient was of advanced age of about 90 years. Pre- operative tests were necessary to decide fitness of the Patient for undergoing the cataract surgery for the Patient in advanced age. The omission amounted to glaring deficiency in service on the part of the OPs giving rise to adverse presumption against the Ops, particularly when soon 4 after the surgery the complications developed were noticed. According to the Complainant, Death of Patient was hastened due to those complications. Opinion given by the independent Board of Doctors in Government Hospital and credibility thereof cannot be overlooked. When Complainant alleges that Patient was admitted in the Hospital and the evidence is adduced that the Patient died due to the lack of proper care and precautions and negligence on the part of the Hospital, the burden shifts upon the Hospital to justify that there was no negligence on the part of the treating Doctor or Hospital. In any case, the Hospital is in better position to disclose the evidence as to proper care and precautions taken while the Patient was admitted in the Hospital. Common Man who pays heavily for the services of the Hospital has reasonable and legitimate expectation that services from the Hospital would be better and efficient than any private clinic and Patient would be served carefully and diligently. Non impleading a treating Doctor in a given case can not absolve the Hospital of it's duty to serve the Patient efficiently with proper care and precautions. Negligence is strictly nonfeasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances because it is in violation of Statute or ordinance or is contrary to the dictates of ordinary prudence. Surrounding circumstances brought on record need to be borne in mind whether the conduct was careless or due to want of precautions Patient suffered the injury, which she should not have but for deficiency in service on the part of Hospital or treating Doctor. Forum below had referred the record to the Committee of experts specialized in Ophthalmology for their expert opinion by its order dated 07.12.2009. Committee of Doctors consisting of Professor and Head, Department of Ophthalmology, Associate Professor Department of Medicine and Medical officer Grant Medical College and Sir J.J. group of Hospital had gone through the record and in their report 5 dated 24th March 2011 concluded that C.B.C. report in Aditya Jyot Hospital was faulty which led to fitness for cataract surgery and the Patient suffered due to morbidity caused post operative eye Hemorrhage. The blame was imputed to Laboratory /Pathologist in the Appellant Hospital. However, the Ophthalmologist cannot be held responsible for the same as surgery was performed on the basis of the report which showed platelet adequate. Although the Committee had not received entire documents from the Appellant Hospital about the exact date of death of the Patient Laxmi or exact chronology of events produced from the Hospital of the Appellant, the conclusion by the Committee was firm under the circumstances that blame was attributable to the report which declared the Patient fit for to undergo cataract surgery on the premise that the platelets were found adequate. Cataract surgery done caused ocular hematoma, not by itself life threatening. But acute Myeloblastic Leukemia was mentioned as most likely cause of death as it has high mortality. Consequences were attributable to the faulty report prepared by pathological Laboratory in the Hospital. The argument questioning the expert opinion on the pretext that the expert committee did not consist of Pathologist does not impress us as the specialist in Ophthalmology was part of the Committee. Expert report by three Doctors of Grant medical College and Sir J. J. Group of Hospital is reliable and acceptable to blame fitness certificate, wrongly granted which led to the surgery and the consequences hastening death of Patient in this case , notwithstanding the fact that the patient was in advanced age for to be advised surgery. Hemoglobin was 9.0gm less than reference range 11.05 to 16.05gm. The differential count of nuteri was drastically low being 14% only that of normal reference range 40 to 70%. Patient's blood count was outside the reference range in the parameters. There was evidence of severe anemia and abnormal differential W.B.C Count. No precautions were taken by the appellant -OP Hospital to carry out the urine tests and to do the Platelet count at pre-operative stage.
69. In view of the reasons stated we hold that the Forum was justified in passing the award holding the appellant liable for medical negligence and to compensate the Complainant for death of Patient Laxmi (his grandmother ). The compensation in the facts and circumstances of the case was just and proper. The impugned judgment is well reasoned and conclusions were logical and, therefore, no ground is made out for interference in the impugned judgment and award.
10. In view of this, we dismiss the appeal with costs quantified at Rs.20,000/- (Rupees twenty thousand) for this appeal proceedings to be paid by the appellant to the respondent no.1/original complainant.
Pronounced on 7th August, 2017.
[JUSTICE A.P.BHANGALE] PRESIDENT [A.K.ZADE] MEMBER Ms 7