State Consumer Disputes Redressal Commission
Miss Prasanna Lakshmi D/O Sri V.T.Raj vs Maxivision Laser Centre Pvt Ltd., on 28 December, 2012
BEFORE
A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
C.C.NO.50
OF 2010
Between:
Miss Prasanna
Lakshmi D/o Sri V.T.Raj
aged 28, Occ: unemployed
H.No.204, Lotus Flora, Prakash
Nagar
Begumpet, Hyderabad-016 Complainant
A N D
Maxivision Laser Centre Pvt
Ltd.,
Rep.
by its Managing Director
1-11-252/1A
to 1D, Alladin Mansion
3rd
street, Begumpet Hyderabad-016
Opposite party
Counsel
for the Appellant Party in person
Counsel
for the Respondent M/s
Indus Law Firm
QUORUM: SRI R.LAKSHMINARASIMHA
RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER FRIDAY THE TWENTY EIGTHT DAY OF DECEMBER TWO THOUSAND TWELVE Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The complaint is filed seeking relief of compensation of one crore rupees against the opposite party. The complainant filed the complaint, C.C.No. 186 of 2009 earlier before the National Commission seeking compensation of 2 crore rupees and she had withdrawn the complaint on 8.02.2010 with liberty to file the instant complaint and restricted her claim to an amount of `1,00,00,000/-.
2. The averments of the complaint are that the complainant and her family members had acquaintance with the doctors and ophthalmologists of the opposite party and on being informed by Dr.Ravi Shanker of the opposite party-hospital that if the complainant undergoes Lasik surgery, she can be relieved of her glasses and her sight problem would be cured and the complainants vision would be the same as with glasses prior to the time of surgery. Believing the words of the doctors of the opposite party-hospital, the complainant had undergone surgery on 16.02.2008. Prior to surgery, a card was issued and the complainants name was recorded by the opposite party-hospital as the patient of Dr.Satish Gupta. The complainant insisted on Dr.Ravi Shanker should perform the surgery in view of his experience and training in the field of Lasik surgery.
3. Dr.Satish Gupta entered the operation theater and performed surgery and the complainant had any time hardly and could not protest immediately. The complainant demanded to know why Dr.Ravi Shanker had not performed surgery and Dr.Ravi Shanker informed her that Dr.Satish Gupta is his senior and he could not come in his way. After surgery, Dr.Ravi Shanker examined the complainant and asked his assistant to bring a sterilized swab and tried to adjust the flap of both eyes of the complainant. The complainants mother noted an expression of anguish and dismay in the face of Dr.Ravi Shanker when he examined the complainant. On 17.02.2008 a junior doctor examined the complainant and he exclaimed saying as to who had conducted the surgery and on being informed it was Dr.Satish Gupta, he changed expression and said it was alright.
4. On 22.02.2008 of Dr.Ravi Shanker examined the complainant and advised her to stop FML and without informing the complainant any problems, noted microstraie which the complainant came to know from other sources to mean wrinkles or lines.
The complainant experienced, during the post-operative stage, loss in vision in clarity and quality including contra sensitivity , hazy vision and light distortion and she suffered from severe glare and double vision problems. Dr.Satish Gupta prescribed medicine for one month and asked her to wait for three months for the result. The complainant could not read as many lines as she did prior to the time of surgery and she experienced redness and watering of eyes as and when she worked on computer. The complainant visited the opposite party-hospital and consulted Dr.Ravi Shanker on 29.02.2008, 8.03.2008 and 28.03.2008. who tried various lenses without improvement.
5. The complainant consulted Dr.Satish Agraharam of VRI super specialty hospital, Hyderabad on 2.06.2008 who referred her to Dr.Milind Bhide of Hyderabad Eye Centre. On 3.06.2008 examined the complainant and observed wrinkles in her both eyes and advised for another surgery to stretch the flaps as also he informed the risk involved in the surgery and explained the procedure how lasik surgery would be performed. He has informed her that there was high risk of epithelial growth which may require recurrent surgeries and chances of clearing the wrinkles were remote at that point of time. He opined that corrective surgery ought to have been performed within two to seven days after the operation was conducted.
6. The complainant demanded Dr.Satish Gupta as to why her choice of the doctor was not allowed to perform lasik surgery and Dr.Satish Gupta replied that whatever has to happen happens and they are not gods and errors do happen.
The complainant again consulted Dr.Satish Agraharam who referred her to Dr.Srinivas Rao of Darshan Eye Clinic at Chennai who on 10.07.2008 examined the complainant and observed wrinkles in her both eyes and informed her that due to the wrinkles in the corneal flaps there was loss in vision and the vision acuity did not improve RGP-CL. He opined that he was not sure whether there would be any improvement in vision and re-surgery is not advisable for risk of infection being high and he opined corrective surgery should have been done immediately after the wrinkles were detected.
7. Dr.Ravi Shankars had noted the wrinkles in the case sheet on 16.2.2008 and 22.2.2008 and he did not initiate any corrective steps. If the flaps are not properly repositioned, the wrinkles will be visible post-surgery to any ordinary expert and the complainant had undergone mental trauma upon knowing that the damage caused to her eyes is irreversible and she has to live with blurred and impaired vision for life. Her chances of bright career and getting married are totally diminished.
The complainant was totally devastated emotionally and physically and she got issued notice to the opposite parties on 26.11.2008 demanding for payment of compensation for which the opposite parties replied on 5.1.2009 admitting the acquaintance of the complainant and her family members with the doctors of the opposite party hospital and the lasik surgery performed upon the complainant as also examination of the complainant by Dr.Ravi Shankar during post-operative stage.
8. The complainants eyes were continuously irritated during surgery. Mucous formation will occur when the eyes are totally dry. The complainant is unable to see minute things which she could see before her surgery and she is unable to read novels and use the computer even for short duration due to double vision and redness of the eyes and her eyes water even when she reads a newspaper for a short period. The complainants vision was seriously debilitated on account of the misdeeds, negligence, exhibition of poor skill and deficiency in service on the part of the doctors of the opposite party. The complainant used to earn `30,000/-
as HRD Manager in a private company prior to the time of her surgery and she lost her career in management due to negligence of the opposite party hospital. The complainant has become unemployed and she is unable to pursue her profession.
9. The opposite party has resisted the claim on the premise that lasik surgery involves raising hinged corneal flap and applying predetermined amount of laser. Lasik stands for laser Insitu kerotomileusis through which process, there would raise from 90 to 140 microns of outer layer of cornea (a watch glass like structure in the dark part of the eye), which is called as a FLAP. The flap is hinged at the upper or nasal side so that it is not completely taken off. As a part of procedure, flap is lifted and will be used for Eximer Laser to treat the power on the inner layer under the flap that was created for changing the shape of cornea and correcting the individual power i.e., minus power, plus power and mixture of minus and plus power.
10. The promoter director of the opposite party hospital Dr.Kasu Prasad Reddy is the first Indian to introduce first lasik in England and he is the first person to introduce lasik in India in the year 1996. All Ophthalmologists are competent to do lasik which is a procedure for younger population. The surgery would be performed upon explaining the patient and after the informed consent is obtained. Millions of people opt for to undergo laser and the success rate is 98 to 99 percentage. The opposite party hospital has completed 30000 lasik operations since its inception in 1996. The complainant was under the treatment of Dr.Satish Gupta and Dr.Ravi Shankar since 7.6.2001 and she is closely acquainted with the doctors. The opposite party hospital is possessed equipment for conducting lasik surgery. Dr.Satish Gupta counseled the complainant with regard to the procedure involved in the surgery and the related inherent risk such as under and over cover correction.
11. After obtaining the consent of the complainant, Dr.Satish Gupta performed lasik surgery on 16.2.2008 and surgery was uneventful. On 17.2.2008 when the complainant was seen by Dr.Satish Gupta, her vision was very good (6/9). The complainant was examined at various occasions after the surgery. Last examination was on 8.3.2008 and her vision was recorded as 6/9 right eye with a correction of =0.75 Dsph and 6/9 uncorrected in left eye. The flaps were found to be clear. The complainant advised to continue tear drops and was asked to come back for follow up after 3 weeks. Thereafter she did not turn up.
12. The doctors at opposite party-hospital had not assured 100% guarantee. It is axiomatic that every surgery is associated with risk.
Dr.Satish Gupta is a senior doctor in the opposite partys hospital with an experience of 38 years and Dr.Ravi Shanker is a doctor with 10 years experience. The complainant did not request or suggest that Dr.Ravi Shanker should performed the surgery. Had the complainant opted for Dr.Ravi Shanker he would have been asked to do the surgery as both the doctors work as a team. Throughout the surgery the complainant was conscious and was talking throughout the procedure by responding to Dr.Satish Gupta and she never raised any objection. As a routine measure, Dr.Ravi Shanker checked corneal flaps on slit lamp after the lasik procedure and cleaned the mucous with sterile swab.
Dr.Satish Gupta is only a visiting consultant.
13. On 22.08.2008 the complainant was asked to stop the FML and it was also observed that her vision was good in each eye. The complainant did not visit the opposite party or its doctors on 28.3.2008.
Folds/wrinkles are reset on the 1st postoperative day whereas microstriae are kept under observation as they settle in time as the cornea was moulding. The doctors of the opposite party would have handled the problem if she had come for proper follow up after three weeks. On 8.3.2008 no microstriae were observed by Dr.Ravi Shanker and they disappeared and requested the complainant to come after 3 months and the complainant did not turn up. Had the microstriae were noticed in her right eye on 22.2.2008 the endorsement to that effect would have find place in the medical record.
There was a small hyperopic shift, which was noted on 8.3.2008 and it is a regular practice to stop FML eye drops in such a case. The complainant was clearly informed that she may require a small number for fine work even after the lasik.
14. The mucous formation can happen in any eye that is operated or non-operated. On the first post-operative day, if mucous is observed it is a routine practice to clean the mucous on slit lamp for clear view of the flap edge and the flap itself.
15. The claim for Rs.one crore is exorbitant and the same is without any basis. This Commission has referred the present complaint to the Superintendent, S.D. Eye Hospital, Hyderabad to evaluate her case and report back as to whether there was negligence on the part of the opposite party. The Superintendent Sarojini Devi Eye Hospital, Hyderabad through proceedings Rc.No.79/E1/SDEH/2010 dated 22.3.2010 has informed that there was no negligence on the part of the opposite party. The doctors treated the complainant with all care and caution as such prayed for dismissal of the complaint.
16. The complainant is examined as PW1 and got marked Exs.A1 to A15. On behalf of the opposite party, Dr.Satish Gupta, ophthalmologist was examined as RW1 and the documents Exs.B1 to B16.
17. Both parties have filed written arguments.
18. The point for consideration is whether the opposite parties have rendered deficient service in administering medical treatment to the complainant?
19. The complainant had minus sight problem since the year 2001. She had undergone lasik procedure in the opposite party hospital on 16.02.2008. She was represented by her counsel and the time of hearing the complainant advanced her argument as her counsel as per her instructions had withdrawn his vakalat. The complainant has challenged the treatment administered to her on the premise of incompetence of Dr.Satish Gupta who performed the surgery, operation performed by doctor other than the doctor of her choice, failure of the doctor to conduct the preoperative and post-operative tests whereas the opposite party has contended that he is a competent doctor and exercised reasonable skill in performing the surgery.
20. SURGERY BY THE DOCTOR OF COMPLAINATS CHOICE:
The complainant has stated that she and her family members had been acquainted with the doctors of the opposite party hospital since the year 2001 and Dr.Ravi Shanker suggested her to undergo lasik surgery to avoid using the spectacles.
She states that Dr.Ravi Shanker informed her that he was well trained in lasik surgery and she was not briefed about the risk involved in the surgery as also that she was informed by Dr.Ravi Shanker that surgery was safe and devoid of any complications.
21. The complainant has stated that she had agreed to undergo lasik surgery basing on assurance that Dr.Ravi Shanker would perform the surgery and that he is extensively drained and performed lasik surgeries successfully. The complainant has stated that Dr.Ravi Shankar represented to her that he was extensively trained in the lasik surgery and as such she preferred the service of Dr.Ravi Shankar. Dr.Satish Gupta has denied that the complainant had preferred the service of Dr.Ravi Shankar. He has stated that he is a senior doctor and the complainant has been treated by him since 2001 and as such she had chosen to undergo surgery to be performed by him.
22. Admittedly, Dr.Satish Gupta has been treating the complainant since 2001 and he is a senior doctor with exerince of 38 years. Dr.Ravi Shankar is the junior of Dr.Satish Gupta and , Dr.Satish Gupta . A week days prior to the date of surgery, card was issued by the opposite party hospital with information that Dr.Satish Gupta would perform Lasik procedure upon the complainant. As rightly contended by the learned counsel for the opposite party that there is no denial of the fact that the complainant was talking to Dr.Satish Gupta while the surgery was performed upon her and she has not made any request at any time that Dr.Ravi Shankar should perform the surgery.
23. It is not the case of the complainant that , Dr.Satish Gupta is not familiar to her and she and her family members are acquainted with the doctors of the opposite party-hospital other than , Dr.Satish Gupta. The complainant has stated that:
I was a regular user of the service of the opposite party for my short sight problems and my family members eye problems since 2001. IT is submitted that due to the long association with the doctors and ophthalmologists of the opposite party, I and my family members had developed good acquaintance with them.
24. The treatment rendered by , Dr.Satish Gupta to the complainant for a long period of time is stated by her in the following words:
I submit that prior to the surgery, the card was issued in the name of Dr.Satish Gupta whom I was consulting over the years. The database of the opposite party records me as a patient of , Dr.Satish Gupta.
25. Thus, the contention that the complainant was deprived to be performed surgery upon her by the doctor of her choice does not hold water. Even otherwise, the evidence of the complainant would establish that immediately after the surgery, Dr.Ravi Shankar has attended on her. As such, the contention that the complainants right to choose a surgeon of her choice is not sustainable.
26. COMPETENCE OF DR.SATISH GUPTA TO PERFORM LASIK PROCEDURE:
27. The complainant has submitted that Dr.Satish Gupta does not possess requisite qualification, training and experience to perform Lasik procedure. Dr.Satish Gupta deposed that he is experienced in refractive and corneal surgery for about 20 years and he introduced the refractive surgery in L.V.Prasad Eye Institute Hyderabad during 1987-1997 after he trained large number of fellows in refractive surgery and other specialties in ophthalmology. He has stated that he attended various refractive surgery meetings and he had been several universities in United States as also he was instructor and fellow at Rochester and guest faculty of Orbits an International Organization and lectured and demonstrated the eye surgery in various countries such as China, Myanmar, Tashkent, Costa Rica.
28. In his cross examination Dr.Satish Gupta has stated that he was not taught refractive surgery at AIIMS nor trained in refractive surgery. He has stated that the refractive surgery is of recent origin i.e., of late 1980s and the refractive surgery involves correction of refractive error in the eyes to reduce the dependence on glasses. Pointing out the admission of the RW1 in his cross examination that he was not taught refractive surgery in AIIMS nor trained in refractive surgery, the complainant has contended that RW1 is not a qualified refractive surgeon.
29. To the question whether he had undergone formal training performing surgery, Dr.Satish Gupta has given reply that I have been to various cases all over the world and I have attended conferences and interacted with surgeons. Attended lectures and watched surgeries done by surgeons and I have practiced on goats eye. Dr.Satish Gupta has stated in his cross examination that he attended various conferences and he possessed paper to show that he attended refractive surgery meeting which encompasses teaching of lasik. He has admitted that the word lasik is not mentioned in the certificates he has filed in the case. He has stated that all ophthalmologists are competent to do lasik procedure.
30. The complainant has not adduced any evidence to establish that RW1 is not competent to perform lasik surgery upon her. The statement of RW1 that he was not trained at AIIMS does not by itself would not mean that RW1 is not competent to perform lasik surgery. Dr.Satish Gupta has stated that all refractive surgeons are lasik surgeons.
The complainant submits that the statement of RW1 that all refractive surgeons are lasik surgeons is full of fallacy and like stating all mothers are females and all females are mothers. According to the complainant, lasik surgery is a specialized field in refractive surgery which has to be acquired through further qualification and training either from authorized institute or any institute recognized by the medical council.
31. After she had undergone surgery and discharged from the opposite party-hospital, the complainant consulted Dr.Satish Agraharam, Dr.Milind Bhide,Dr.K.Srinivas Rao, Dr.Syeed Maaz Mohiuddin are all refractive surgeons. The complainant has not expressed any doubt as to their competence. In regard to the training to be imparted to Lasik surgeons, the complainant has stated that:
I humbly submit that the opposite party has filed its counter with all false allegations. As regards the contentions in the version filed on behalf of the opposite party that the promoter of the opposite party brags(sic says) that he is the first person to introduce Lasik surgery and the same is denied for want of knowledge and in any case it is no qualification that the surgeries being performed without any fault. The further allegation that all ophthalmologists are competent to perform Lasik is incorrect as matter of fact Lasik is a specialized procedure requires training either in authorized institutes or in any institute recognized by the Medical Council. There are no authorized training colleges anywhere in the country to the best of my knowledge imparting training in Lasik procedure. The supplier of equipment usually trains one surgeon and technicians and limits his liability to the proper use of the equipment by the authorized trainee by it.
32. RW1 has denied the suggestion that he was not trained to perform surgery by using the Laser Equipment. He has stated that:
It is not true to say that there was negligence on my part in treating the micro starie noted and wrinkles and that I was negligent and that I did not use the correct treatment procedure as I was not properly trained in Lasik procedure and that due to my negligence the complainants vision is impaired permanently.
33. The learned counsel for the opposite party has contended that the manufacturer of the machine demonstrates to the surgeons how the machine functions and the surgeons would be imparted with training by reading literature, attending scientific meetings and workshops, visiting various centers and watching how the surgery is performed and working with surgeons who already had been doing the procedure. Absolutely there is no evidence placed on record to show that RW1 had read the literature on Lasik and attended the scientific meeting on Lasik surgery as also that he had watched the other doctors trained in the field performing Lasik. RW1 has stated that with his experience in refractive experience he could raise a corneal flap and replace it without any problem.
34. There are no authorized training institutes in India to impart training to the doctors who intend to perform Lasik procedure on their patients. Medical Council of India has not prescribed any training as qualification to perform Lasik as qualification. Dr.Satish Gupta and Dr.Ravi Shankar and the other doctors, Dr.Satish Agraharam, Dr.Milind Bhide,Dr.K.Srinivas Rao, Dr.Syeed Maaz Mohiuddin whom the complainant had consulted during the post-operative stage stand on the same footing insofar as the competence required to perform Lasik is required. RW1 has admitted in his cross-examination that on the website of the opposite party-hospital he is shown as cataract, cornea refractive surgeon and some other doctors as refractive surgeons and some other doctors as Lasik surgeons.
35. Dr.Satish Gupta admitted that his role in several programmes was limited to corneal surgery. He has stated that:
It is true that Orbis which I referred to in my affidavit is into various kinds of eye surgeries and not involved in lasik and my specific role was doing corneal surgery and demonstrating it to the delegates.
36. The complainant has stated that it was represented to her that Dr.Ravi Shankar was trained in Lasik surgery. Whether she expressed her concern to undergo surgery at the hands of Dr.Ravi Shankar or not, it was not advisable for the opposite party-hospital to advertise on its website that particular doctor is skilled in performing Lasik and entrusting the patient to a doctor who had been projected as a specialist in performing refractive surgery.
37. WHETHER THERE IS DEFICIENY IN SERVICE IN THE TREATMENT:
38. The complainant has contended that the opposite party-hospital had not conducted preoperative tests and post-operative tests as also that there was no informed consent for the surgery, Lasik procedure.
39. The complainant has submitted that Dr.Satish Gupta of the opposite party hospital has not informed her about the possible complications and the inherent risk in undergoing Lasik surgery as also the procedure to be adopted for performing the surgery. In his evidence Dr.Satish Gupta has stated that they had informed the complainant about the benefits of lasik surgery. He has stated that :
i) We have informed the complainant about the benefits of Lasik surgery during our interaction with her since 2001.
We have not supplied any documents, material except the consent form informing the possible risk and complications. Our company has no printed material informing the possible complications, risks to be given to prospective patient. Lasik surgery is both cosmetic as well as therapeutic surgery. CE Pg 54 of SB
ii) It is true that Ex.B-18 does not speak about the surgical complications like micro striae, wrinkles etc except for the general complications. The witness adds that Ex.B18 states that it is impossible to state all the possi8ble complications. CE Pg-56 of SB.
iii) In Ex.B18 first the signature of the patient is taken and only thereafter the surgeon signs. CE Pg-56 of SB.
40. The information stated to have be furnished about the benefit of Lasik procedure since the year 2001 cannot form integral part of consent. The complainant has denied suggestion that Dr.Satish Gupta and Dr.Ravi Shanker explained to her about the entire lasik procedure and the inherent risk involved therein. She has stated that she signed the consent form prior to the time she was taken to the operation theatre. The consent form is dated 16.2.2008 on which date lasik procedure was performed upon the complainant. As mentioned above, informed consent is not just a consent and the treating doctor has the obligation to inform the nature and procedure of the treatment and its purpose, benefits and effect, alternatives if any available, an outline of the substantial risks and adverse consequences of refusing treatment. The complainant has contended that had she been informed by the opposite party hospital about the associated risk in undergoing lasik surgery, she would never have undergone surgery. The statement of the complainant coupled with the consent form would establish that the opposite party hospital and its doctors had not obtained informed consent from the complainant for performing lasik procedure upon her.
41. In Samira Kohli Vs Dr.Prabha Manchanda & Another reported in (2008) 2 SCC 1 the Honble Supreme Court has laid down the principle that for any kind of treatment inclusive of surgery, the informed consent from the patient is essential for a doctor to proceed with.
The importance of furnishing information about the treatment to be administered to the patient and the significance of his consent in the circumstances of the cases has been elaborately dealt with by the Supreme Court as under:
We may now summarize principles relating to consent as follows:
(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also).
The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose
(a) nature and procedure of the treatment and its purpose, benefits and effect;
(b) alternatives if any available;
(c) an outline of the substantial risks; and
(d) adverse consequences of refusing treatment.
(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery.
42. RW1 has stated that formation of Micro Straie is one of the common complications of the surgery. Such common complications were not informed to the complainant before she was made to sign the consent form. The complainant has stated that her signature in the consent form was obtained just before she was taken to the operation theatre and she did not understand the terms of the consent form. The statement of the complainant is not rebutted nor denied. The complainant has denied that Dr.Satish Gupta and Dr.Ravi Shankar had informed her about the lasik procedure and the inherent risk therein. The complainant has stated that either doctor Satish Gupta or Dr.Ravi Shnakar had not informed her Lasik procedure and she was informed of the procedure for the first time by Dr.Milind Bhede.
She has stated that:
It is submitted that my vision did not improve even after three months. I therefore, consulted Dr.Satish Agraharam of VRI Super Speciality Hospital, on 2.06.2008 who observed redness in eyes and who prescribed medicines for the same and referred me to Dr.Milind Bhide of Hyderabad Eye Centre. On 3.06.2008, I consulted the said doctor who for the first time explained how Lasik surgery was done and the risks involved.
43. Several complications result from Lasik surgery which include, Loss of vision, Visual Side-effects such as Corneal Haze, Decreased Night or Low-Light Vision, Loss of contrast sensitivity, sever dry eye, Intraocualr pressure elevation, over correction, Loss of best corrected vision, Double vision, Glare, Night(darkness) Myopia, Halos and starbusts, Vision blurring.
44. Peri-operative complications include Suture Use which would induce astigmatism, potential complications due to anesthesia and medication , Mircrokeratome or Laser malfunction besides other post-operative complications such as Flap Melt, Flap dislocation, Flap Striae, Central Island, Free Flap, Lost flap, Incomplete Flap, Buttonhole Flap, Corneal Abrasion, Decentered Ablation, sands of Sahara and the other complications and conditions that can occur with Lasik are Anisometropia(difference in power between the two eyes); Aniseikonia(difference in image size between the two eyes); double vision;hazy vision; fluctuating vision during the day and from day to day; increased sensitivity to light etc.,
45. Admittedly, Lasik procedure is fairly new in India. Either Dr.Satish Gupta or any other doctor had not provided information to the complainant about Lasik Procedure, the inherent risks involved therein and other available options. The complainant has stated that if she had been properly informed by the doctors of the opposite party-hospital about the risk associated with the Lasik, she would not have opted to undergo Lasik Procedure. The consent form cannot be considered as an informed consent.
46. As contended by the learned counsel for the opposite party-hospital, the Lasik surgery is a refractive surgery which involves raising hinged corneal flap and applying pre-determined amount of laser. LASIK stands for Laser Insitu Kerotomileusis, through which process a flap of 90 to 140 microns of outer layer of cornea is raised. The flap is lifted and a predetermined amount of Excimer Laser is applied to the corneal bed, whereby the shape of cornea is changed and the power , minus power, plus power or a mixture of minus and plus power is corrected and the flap is then repositioned on the corneal bed.
47. RW1 has stated that basically the patient is subjected to three tests before performing Lasik upon him. He has stated that:
Prior to the performance of the Lasik surgery the candidate is tested for suitability. Basically three tests are done. First is general examination, second ORB scan and thirdly aberrometry test. The general examination includes refractive error. General examination includes refractive error, General Examination is done by the surgeon who performs the surgery; other two tests are carried out by technicians on special equipment. The surgeons are totally dependent on the technicians for the about tests
48. The doctor has admitted that the quality of care before and after corrective surgery procedure is important for the final outcome. The complainant has referred to the website http://eyesurgery.advice, infor/lasik-surgery-preoperativetests.html http:// www.lasiksurgerywatcyh.org//issues/reduced VisualQuality html to contend that required preoperative tests before performing Lasik procedure are :
1.Complete Eye Examination - A complete eye examination, including pupil dilation, is required to decide the refractive power and health of your eye . Basically, it lets the doctor collect the raw data of your true vision (Was done).
2.Dry Eye Testing or Qualitative and Quantitative Tear Film Tests: Ocular dryness already present in patients undergoing LASIK surgery will have a higher risk of post-operative dryness. Both the quality and the quantity of your tears are important when determining if you are a good LASIK candidate. If either or these is not optimal, the doctor may choose to delay LASIK until you tears can be corrected by mechanical or therapeutic measures.
3.Binocular Visio Assessment some people have minor eye muscle alignment problems or binocular vision deficits that may interfere with some LASIK results.
A patient could possibly have one of these ailments and be unaware of it, as their eye muscles tend to hide it well.
4.Contrast Sensitivity Testing Contrast sensitivity tests may be performed by some doctors to better understand the functional vision of the patient, beyond just the Snellen chart ( a high contract chart). Tests such as the Hamilton Veale Contrast Sensitivity Test and the Mars Letter Contrast Sensitivity Test are two examples of testing used today.
5.Pupil Testing Accurate Pupil Size Measurements Night time and daytime pupil size is important for quality of vision after LASIK. Patients with naturally large pupils or pupils that dilate heavily in dim light may have more glare, halos and contrast problems after having LASIK. Evaluating the pupil size, especially in the dark, will allow better informed consent. Pupil size can be measured accurately with special devices such as an infrared pupillometer.
6.Pachymetery or Corneal Thickness Measurements Pachymetery is known as the measurement of the thickness of the cornea. This is important for LASIK patients because the procedure changes the power of the eye by reshaping and removing corneal tissue. Patients with extremely thin corneas may not make good LASIK candidates. While todays methods of performing LASIK make this less of a problem, pachymetery is still vital to the success of any refractive procedure.
7.Wavefront Analysis Wavefront testing is used to detect higher order aberrations that may degrade vision. Standard LASIK procedures cannot treat patients with significant amounts of wavefront abnormalities, which may leave them with unwanted visual symptoms after surgery. Wavefront guided LASIK may be the better choice to reduce higher order aberrations, subsequently giving the patient a better visual outcome. Wavefront technology is continuing to evolve, and is still in the beginning stages.(aberrometry was done)
8.Corneal Topography - Corneal topography is a valuable three dimensional imaging tool to map the surface of the cornea. Some instruments use placido disk ring system where others use a scanning slit beam. Corneal topography is critical in detecting a variety of corneal abnormalities. If certain abnormalities are found, than LASIK may be an unsafe procedure, leading to vision loss in the future for the patient. Examples of abnormalities include, keratoconus and pellucid marginal degeneration. (ORB scan done)
9.Keratometry - Manual keratometry is important to evaluate the corneal shape pre-operatively. Postoperative keratometric values can be predicted based on type and level of treatment. A postoperative cornea that is too flat (35D or less) or too steep (50D or greater) may cause visual degradation.
49. The complainant has contended that except three tests, General Examination, ORB scan and Aberrometry tests and the opposite party has not conducted any other tests which are of significance. The complainant suffered from Dry eye and as seen from the prescription of Dr.Srinivas Rao of Darshan Eye Clinic the complainants visual acuity did not improve with RGP CL which indicates that her vision was not improved by contact lens since she suffered from dry eye. Dr.Satish Gupta has stated that the surgeon conducted General examination while the technician conducted the other two tests.
50. RW1 has stated that he does not remember the name of surgeon who conducted the pre-operative tests and one Subramaniam was trained to operate the machine. The statement of RW1 is supported by the prescription,ExA1 that the three pre-operative tests were conducted on 16.02.2008. Dr.Satish Gupta has deposed that the opposite party-hospital would not examine, the other doctor Dr.Ravi Shankar and the technician, Subramaniam. In his cross examination he denied the suggestion and stated as :
It is not true to say that there was negligence on my part in treating the micro Straie noted and wrinkles and that I was negligent and that I did not use the correct treatment procedure as I was not properly trained in Lasik procedure and that due to my negligence the complainants visions is impaired permanently. Witness adds that since there were no wrinkles no treatment was required. We are not going to examine the other doctor, i.e, Dr.Ravi Shankar and Subramanyam, the technician.
51. The opposite party has failed to specify the doctor who conducted the General Examination and the technician who said to have conducted the other two tests as mentioned in his evidence by Dr.Satish Gupta RW1 has stated that the surgeon depends upon the technician for the general examination, ORB Scan and Aberrometry tests. He has stated :
General examination is done by the surgeon who performs the surgery; other two tests are carried out by technicians on special equipment. The surgeon are totally dependent on the technician for the above tests. The surgeon believes the technicians who give the data and who perform tests. The said technicians are well qualified.
52. Despite the plea of the complainant that the technician and the doctor had not been trained by the manufacturer of the Lasik machine, the opposite party has not examined the technician who said to have conducted the two pre-operative tests upon the complainant. The opposite party has failed to exercise due care in evaluating the patient prior to performing the Lasik procedure upon the complainant. The contention of the complainant that it was highly doubtful that she was fit enough to have undergone Lasik in view of the problem she reported dry eye.
53. The agreement entered into, between the opposite party-hospital and manufacturer of the Lasik machine is not produced by the opposite party despite a specific request made by the complainant as she has been contending all along that the unskilled persons operated upon her. The complainant issued notice to the opposite party to produce the documents,1.Agreement entered into between Maxivision Laser Centre(P) Ltd and Bosch and Lomb for supply of Zyoptix Laser Equipment. 2. Certificated of commissioning the equipment by Bosch and Lomb and 3. Certificated issued by competent authority that RW1 was trained in performing Lasik surgery by using the equipment. Dr.Satish Gupta has stated that the manufacturer of Lasik machine trained Subramanyam in the year,2001 and the manufacturer has not issued any certificate to the effect in favour of Subramanyam. He has also stated that he was not imparted with training to perform Lasik by using the equipment. However, the opposite party-hospital has not produced the agreement and had not chosen to examine the technician.
54. It is interesting to see Dr.Satish Guptal stating that he is a treating doctor of the opposite party-hospital and he is not a major shareholder of the opposite party-hospital and he had not exercised lot of clout on the opposite party-hospital. As stated by him in his cross-examination he is a treating doctor of the opposite party-hospital. He has deposed that the opposite party-hospital would not examine the other surgeon, Dr.Ravi Shanker and the technician. As an administrator of the opposite party-hospital he had stated that the hospital would not examine the surgeon or the technician. Reframing from examining Dr.Ravi Shankar, the other surgeon who stated to have imparted with training and who said to have been examined the complainant after she had undergone Lasik and the technician who stated to have undergone training by the manufacturer of the Laser Machine is fatal to the case of the opposite party-hospital.
55. What happens in the operation theatre is within the realm of knowledge of the surgeon and his team. RW1 has not stated who were present along with him and who assisted him in performing Lasik on the complainant. He has also not stated the procedure adopted by him while performing the Lasik procedure upon the complainant. He has stated that the operation was uneventful. He has stated that the surgeons job in performing Lasik is to position the head of the patient correctly, create a flap and reflect it and focus the laser on the cornea and apply it and replace the flap correctly. Referring to the reports of New Visions Laser Centre and L.V.Prasad Eye Institite, RW1 has stated that he does not agree with those reports wherein it was noted de-centered ablation and regression. RW! has stated that De-centered ablation could be due to the cornea not being centered properly or correctly. Regression is known to occur in any case of Lasik.
56. Dr.Vishram of LVPrasad Eye Institute issued Medical Report dated 13.05.2010 that by means of slit lamp examination it was revealed that corneas has shown presence of microstriae in the flap and Aberrometry revealed total HOA of 3.6lmm with 5mm WF diameter in the left eye and unreliable data in the right eye. He diagnosed the case of the complainant as status of post lasik with decentered ablation in both eyes. The complainant referred to the website http//www.parkavenuelaser.com to contend that decentered ablation is a laser treatment that is not properly centered.
57. It is common knowledge and the case of the opposite party-hospital that each surgery involves certain element of risk. When it comes to the problem with eyesight, the treating doctor is supposed to be extra careful as the slightest mistake in the surgery would render the patient blind and suffer for lifetime. The complainant has contended that the opposite party-hospital opting for performing Bilateral simultaneous treatment to her and educating her about the risk of such treatment rendered deficient treatment and had surgery was performed on her one eye the other eye could have been spared of the irreversible mishap. She has relied upon the information furnished on http//www.cornealaw.com wherein Bilateral Simultaneous treatment and its associated disadvantage is mentioned.
58. The complainant has stated that immediately after surgery, Dr.Ravi Shankar examined her and with an expression of anguish and dismay instructed his assistant to fetch a sterilized swab and tried to adjust the flaps in her both eyes. She has contended that the opposite party has admitted the examination of her eyes by Dr.Ravi Shankar which however according to them is to clean mucous which she refuted stating that immediately after the surgery she was examined by the doctor two minutes after the operation and as RW1 had thoroughly cleaned her eyes with saline solution, the mucous would not form.
59. The opposite party-hospital has in its written version pleaded that Dr.Satish Gupta, RW1 had examined the complainant on 17.02.2008 whereas RW1 has deposed that duty doctor ,Dr.Ram Kumar examined the complainant .RW! has stated that he examined the complainant for the first time after the surgery on 22.02.2008 and folds and wrinkles in the flaps have to be reset on first post-operative day. Dr.Satish Gupta who performed Lasik on the complainant has stated that he is a senior doctor with 38 years of experience and compared to Dr.Ravi Shankar with an experience of 10 years, he is the senior doctor of the opposite party-hopsital and he had attended several conferences on eye surgery and he is member of American Society of Cataract and Refractive surgery and yet he neglected to exercise due care of examining the complainant who according to him has opted to perform Lasik upon her.
60. Examination of operated eye on the firs post-operative day is of much importance to prevent all possible complications. The complainant has contended that on the day of surgery her operated eyes were not examined under slit lamp for early detection of striae. The doctors of the opposite parties have not bothered to check if the surgery was uneventful. She has contended that the opposite party has shown high commercial mindedness, blatant attitude and paid little concern for the welfare of the patients. She has submitted that knowing well that senior doctors would not be available on the next day of surgery, her Lasik procedure was planned on Saturday as a result of which she could not get the attention of senior doctors of the opposite party-hospital. We find acceptable force in the contention of the complainant. The doctor who performed the surgery has neglected to show least concern for his patient by ignoring to attend on her till a week after the surgery was performed by him upon her.
61. Doctor Ravi Shankar who examined the complainant immediately after the surgery is not examined nor is his affidavit filed. The complainant states that the opposite party has not taken care of the post-operative complications. RW1 has admitted that corneal folds, wrinkles, striae, diplopia, decentered ablation are surgical complications. He has stated that he had noticed astigmatism and he did not conduct any tests for cause for the astigmatism. He has stated that:
I have not performed any tests to know the reason for astigmatism after lasik surgery. I have performed tests to determine the presence of wrinkles, microstraie, folds etc by examining the complainant under the slit lamp on 22.02.2008.
62. The statement of Dr.Satish Gupta would reflect the magnitude of negligence in the treatment administered to the complainant. The treating doctor examined the patient after a period of week days to know whether there were any wrinkles and microstraie. Another perturbing fact of the case is that though the doctor had noted that there were microstraie in both eyes of the complainant RW1 or Dr.Ravi Shankar had not recorded them in the medical records nor did they inform the complainant about them on the premise that they were insignificant and would disappear over a period of time. In his cross-examination, RW1 has stated :
After discovery of the microstraie in the complainants eye we did not take any steps to treat the same as we thought it is best left untreated as they normally disappear over a period of time.After the discovery of microstraie we have not taken any step to resolve the same nor discussed with the complainant regarding the same because they normally disappear over a period of time.
63. Except denying the suggestion that the opposite party-hospital has not taken any steps after the complainant expressed her unhappiness with the visual outcome of the surgery, the opposite party has not mentioned any of the steps taken to the effect.
64. The complainant has contended that the opposite party-hospital has neglected to conduct post-operative tests and failed to cure the fall in vision and formation of striae. The learned counsel for the opposite party-hospital has submitted that the complainant is not aware of difference between wrinkles and striae and the post operative examination had revealed that her vision was improved to almost normal vision. The complainant has submitted that the opposite party has not conducted Corneal Topography Test or Contrast Sensitivity Test and Wave Front Aberrometry Test at any time during the post-surgery period. The complainant has relied upon the websites for post-operative complications on www.cornealaw.com, for detection of striae after surgery on www.parkavenuelaser.com, decenteredablation on www.refractivsource.com, treatment of wrinkles on www.docshop.com,lasik risk on www.usatoday30.com,l
65. Some of the relevant material is extracted herein below;
Reduced Quality of Vision After LASIK Reduced visual quality after LASIK is a difficult concept for individuals who have never experienced it to comprehend. The general perception is that vision can be measured by an eye chart. In a healthy, unoperated eye, this is generally true. However, after LASIK, an eye chart may be of little value because it fails to measure visual quality. For example, a LASIK patient may be able to read the 20/20 line on the eye chart, but the image they see may be grossly distorted by multiple vision, smearing, or other visual aberrations.
Contrast sensitivity testing and wavefront aberrometry are methods that may be used to objectively quantify reduced visual quality after LASIK. Contrast sensitivity is a measure of how well a patient can distinguish detail under low contrast conditions. Wavefront aberrometry is performed by objectively measuring the shape and severity of defocus of light rays reaching the retina.
A laser treatment that is not properly centered is called a decentered ablation, which can result in smeared or ghosted images, especially at night. The wavefront term for a decentered ablation is coma. Spherical aberration and coma are common types of irregular astigmatism, also known as higher order aberrations, after LASIK. Other forms of wavefront aberration may be induced by LASIK. RGP contact lenses may be the only effective means of reducing visual aberration at night after LASIKironically, LASIK-induced dry eye may render patients intolerant to RGP contact lenses.
When and what type of striae should be treated?
Immediately after LASIK, some residual striae are often visible but may completely disappear the next day. Striae outside the visual axis are relatively harmless. Only striae in the visual axis that cause astigmatism or affect best-corrected visual acuity (BCVA) should be treated. Folds, in contrast, are thick and wrinkled and need to be treated as soon as possible.
If flap striae form, they should be identified on the first postoperative day and, when visually significant, should be treated as soon as possible. If significant striae are not treated within the first two weeks after surgery, they may become imbedded in the corneal flap tissue, making them difficult to remove.
Causes and predictors of striae formation Striae can form in a number of ways. They are more common in patients over age 40, and in high myopes because of the tenting affect,' which is caused by the greater depth of tissue ablation needed to reshape the cornea. Greater ablation can alter the original flap-stromal bed relationship, creating a tent when the flap is placed back onto the stroma. Striae can also form by misalignment of the corneal flap after flap replacement, by photophobia (abnormal sensitivity to light), or by movement of the corneal flap during the first postoperative day by rubbing, blinking excessively, or squeezing the eye due to pain.
Detection of striae While the causes and predictors may prepare the LASIK surgeon for what to expect postoperatively, early detection of striae in any patient is still crucial. Flap striae can occur within the first hour after LASIK, so refractive surgeons should take measures to detect striae as soon as possible. The first step is to examine the patient at the slit-lamp,' a lighted microscope that allows the doctor to examine your eye under high magnification. A corneal topography should also be performed as part of every postoperative checkup. If visual acuity is not near 20/20, if it is worse than preoperative acuity, or if astigmatism is present, flap striae or wrinkling may be the cause.
The presence of wrinkling or striae must then be confirmed to indicate if flap manipulation is necessary. The traditional method is to dilate the pupils and examine the cornea under a slit-lamp.
Treating striae There is no one universal method for treating striae. Those striae that occur in the visual axis can be approached by refractive surgeons in many ways depending on the type and severity, as well as the amount of time they took to detect. Methods such as re-floating the flap, using hypotonic solution or collagen punctal plugs, ironing out the wrinkles with a special instrument, removing the epithelium, suturing the flap, and using a bandage contact lens are the more common measures that refractive surgeons take to remove striae.
Reticular micro-striae
- reticular micro-striae need to be treated with a bandage contact lens, punctal plugs, or lubrication medicine. If these striae still persist after two weeks of treatment, then they should be treated like the other types of striae.
According to Ernest Kommehl, MD, striae are usually more the surgeons fault rather than the patients. To prevent striae from occurring, the surgeon must allot an appropriate amount of manipulation to the flap. After reshaping the exposed cornea with an excimer laser, the surgeon must reposition the corneal flap back to its original over the stromal bed, usually using sponges and forceps. If any wrinkling or misalignments occurs, flap striae may form.
Immediately after LASIK, some redidual striae are often visible, but may completely disappear the next postop day. Striae outside the visual axis are relatively harmless. One example are the peripheral striae shown in the figure 2. Only striae in the visual axix that cause astigmatism or affect best corrected visual acuity should be treated. Folds, in contrast, are thick and wrinkled and should be treated as soon as possible.
66. The learned counsel for the opposite party-hospital has relied upon the decision in State of Punjab vs Shiv Ram (2005)7 SCC1 wherein it was held The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim.
67. He has relied upon Martin F. DSouza Vs. Mohd. Ishfaq reported in I (2009) CPJ 32 SC wherein the medical practitioner was not held liable incase the patient does not respond properly to the treatment. It was held :
A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
42. There is a tendency to confuse a reasonable person with an error free person. An error of judgment may or may not be negligent. It depends on the nature of the error.
43. It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. As Lord Clyde stated in Hunter vs. Hanley 1955 SLT 213 :
In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.
(emphasis supplied)
44. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
45. The higher the acuteness in an emergency and the higher the complication, the more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and has to choose the lesser evil. The doctor is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case but a doctor cannot be penalized if he adopts the former procedure, even if it results in a failure. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure.
46. There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers some serious harm, should the doctor be held liable? In our opinion he should not. Science advances by experimentation, but experiments sometime end in failure e.g. the operation on the Iranian twin sisters who were joined at the head since birth, or the first heart transplant by Dr. Barnard in South Africa. However, in such cases it is advisable for the doctor to explain the situation to the patient and take his written consent.
47. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
68. The learned counsel for the opposite party has contended that Microstrae and wrinkles are two different things and wrinkles are reset on the first post-operative day whereas Microstiae are kept under observation as they settle in time as the cornea is moulding. He has contended that Microstriae was noticed on 22.02.2008 by RW1 and Dr.Ravishankar and subsequently no Microstriae were noticed in the eyes of the complainant.
69. After visiting the opposite party-hospital, the complainant consulted Dr.Satish Agraharam of VRI Super Speciality Hospital, Hyderabad on 2.06.2008who prescribed medicine and referred the complainant to Dr.Milind Bhide of Hyderabad Eye Centre on3.06.2008 who stated to have informed the complainant that she need to go for another surgery to stretch the flaps and there was high risk of epithelial growth which may require recurrent surgeries and the chances of wrinkles were remote. Either Satish Agraharam or Dr.Miing Bhide had not informed the complainant that there were folds or wrinkles in her eyes. The statement of the complainant that Dr. Milind Bhide informed her of existence of wrinkles in her is not supported by his prescription.
70. The complainant visiting the opposite party to enquire as to how her vision got decreased and having received harsh response from the doctor who performed the surgery, she had consulted Dr.Satish Agraharam who advised her to consult Dr.K.Srinivas Rao of Chennai and on 10.07.2008 she was examined by Dr.Srinivas Rao who conducted slit lamp test and opined as under:
Ms.V.Prasanna Lakshmi, a 27 year old lady was examined on 9 July 2008. She complained of blurred vision in both eyes following LASIK on 16 February 2008. Her records revealed a refractive error of-2.75-2.0X180, and -3.0-1.0x180 in the right and left eyes respectively prior to the procedure. There was a history of hypothyroidism, but she was otherwise in good general health.
On examination, her unaided visual acuity was 20/80 in both eyes, and did not improve further with refraction.
Eyes were orthophoric and extraocular movements were full. Slip lamp evaluation revealed wrinkles in the flap in both eyes, more in the left eye. Fundus exam was normal.
Visual acuity did not improve with RGP CL. The pros and cons of flat stretching to remove the wrinkles were disucsed with her.
.
71. The complainant visited LVPrasad Eye Institute on 13.05.2010 and New Visions Laser Center, Hyderabad on 7.06.2010 and prior to the visit to those hospitals, she was examined by the doctors of Sarojini Devi Hospital on 22.03.2010 on being referred by this Commission at the time of admission of the complaint.
72. The expert committee constituted by the superintendent of Sarojini Devi Eye Hospital has opined as under:
Right Eye shows a circular scar 1 mm inside the limbus. Cornea shows microstriae under very high magnification. Rest of the Cornea is normal. Left eye Cornea is normal. Both eyes anterior segment normal, pupils active. Both eyes fundus norma.
Keratometry shows regular mires with a reading of right eye
-43.00/43.75 diopters and left eye 43.00/44.50 diopters. Vision by Dasturs Chart is 6/6 partial.
Based on the above findings the Committee feels the Ocular findings dont suggest any abnormality in the yes which can cause fall of vision.
Hence findings in the yes do not suggest any negligence on the part of the treating doctor
73. To the opinion of the expert committee of Sarojini Devi Hospital, the complainant has raised objection that the report is not investigative at depth and conclusive nature to confirm whether there exists surgical/medical negligence and the committee has not conducted exhaustive tests like corneal topography, contrast sensitivity test and wave front aberrometry or retriolumination technique to capture a photo of the corneal wrinkles as done by Dr.K.Srinivas Rao of Darshan Eye Clinic.
74. Dr.Maaz Mohiuddin of New Vision Laser Centre, Hyderabad has issued report dated 7.06.2010 expressing his opinion that there were flapstriae and referred the complainant to LV Prasad Eye Hospital where Dr.Vishram examined the complainant and issued the following report on 13.05.2010:
Ms.Vellori Prasanna Lakshmi, a 28 years old lady presented to us on 04/05/2010 for regular check up. She had been using glasses 15 yeas (present using glasses for 3 years old).
She had undergone lasik in both eyes for 3 years ago elsewhere. There was no other significant ocular or systemic history.
On examination here, her visual acuity was 20/80 in the right eye and 20/64 in the left eye. Near vision was N6 in both eyes. Intraocular pressure was 12 and 13 mm of Hg in the right eye and left eye respectively. She was orthophoric and ocular movements were full. Slip lamp examination of the lids were flat, conjunctiva was quiet, cornea showed presence of linear vertical microstriae, in the flap, aneterior chamber was deep and quiet, pupil was round, regular and reacting and lens was clear in both eyes. Dilated funds examination was within normal limits in both eyes with cup disc ratio of 0.3:1 with healthy neuroretinal rim in the right eye and no view in the left eye. Orbscan showed sim Ks maximum 43.6D @ 93o and minium 42.2D @ 3o with corneal thickness of 527 microns in the right eye and sim Ks maximum 43.5D @ 82O minium 42.3D @ 172O with corneal thickness of 545 microns in the left eye. Aberrometry revealed total HOA of 3.61mm with 5mm WF diameter in the left eye and unreliable data in the right eye.
Based on the above clinical evaluation, a diagnosis of status post lasik? Decentered ablation in both eyes was made. She was asked to review on 07/05/2010 withy Dr.VS. Repeat Orb scan sim Ks maximum 43.5D@ 82O and minimum 42.3D @ 172O with corneal thickness of 545 microns in the left eye.
Patient was advised contact lens trial and appointment was given for the same.
75. A perusal of the aforementioned reports of diffrerent doctors and hospital would show that Dr.K.Srinivasa Rao of Darshan Eye Clinic, Chennai opined that there were wrinkles in the flap; The expert committee of Sarojini Devi Eye Hospital, Hyderabad shows Microstriae in left eye of the complainant; New Visions Laser Centre found Flap Stiae whereas the LV Prasad Eye Hospital has opined that there were vertical microstriae and decentered ablation in both eyes of the complainant.
76. The learned counsel for the opposite party-hospital has contended that the certificate was not issued by Dr.Srinivas Rao and it was not signed by him. The email dated 10.07.2008 does not contain any details as to who and when it was addressed. He has contended that when the complainant was present before him, there was no necessity for Dr.Sriinivas Rao to send Email to the complainant.
77. A combined reading of the reports of various doctors would establish presence of microstriae in the flap of the complainant. Except Dr.Milind Bhide all other doctors who examined and treated the complainant subsequent to Lasik in the opposite party hospital are not Lasik surgeons. The Complainants suffered reduced vision during post-surgery period. Microstriae are presnt in the flap of one of the eyes of the complainant. The surgeon who performed the Lasik procedure upon the complainant has not exercised due and reasonable care during pre-operative, peri-operative and post-operative stages.
78. The complainant has claimed a sum of one crore on the premise that she was humiliated by the response from Dr.Satish Gupta whom she consulted after she was examined by Dr.Satish Agraharam and Dr.Milind Bhide and due to the negligent treatment of RW1 she suffered wrinkles which are the cause for dip in her vision and it is a permanent irreparable damage to her both eyes and she continued to experience visual symptoms like hazy vision, loss of contra-sensitivity, blurred vision and redness of eye. She has contended that apart from professional front, on personal front there is lingering sense of dejection , feeling of disability and haunting inferiority complex.
79. She has stated that she is unable to read as many lines before during the test and experience redness in eye and watering whenever she would work on computer or read newspaper for a short period of time and there had been great dip in her vision in clarity and quality. She has submitted that medically she is a victim of decentered ablation, wrinkles and associated visual symptoms and consequent to the surgery, she could not continue with her job due to visual disability caused by the surgery and affected her lifestyle.
80. It is contended on behalf of the opposite party that the complainant claimed huge amount and she did not produce any evidence in support of her claim for such an amount. It is contended that the claim is speculative and despite specific objection by the opposite party -hospital, the complainant has not adduced any evidence.
81. The complainant has not produced any evidence to show that she used to earn `30,000/- per month and she was working as HRD manager. There is no evidence brought on record that as a result of consequence of the Lasik surgery, the complainant could not read with such speed as she used to do prior to surgery. The complainant has not reported the blurred vision, contra sensitivity etc., to any of the doctors who subsequently treated her. The complainant has not examined any of the doctors in support of her contention that she suffered from such symptoms as a consequence of her undergoing Lasik Procedure.
82. The opposite party-hospital without obtaining informed consent of the complainant performed Lasik procedure upon her and in this regard, the submission of the complainant attains much significance that had she been properly informed about the risk and associated implications, she would not have agreed to undergo Lasik. Performance of the surgery without an informed consent amounts to unauthorized invasion and interference of the body of the complainant. The complainant has submitted that consequent to the surgery, she was devastated, emotionally and monetarily due to the trauma she had undergone and she lost perfect vision and the very meaning of her life has changed to worse since the time the surgery was performed by the doctors of the opposite party-hospital.
83. The complainant has undergone trauma not only with the failure of the treatment administered at the opposite party-hospital, she is humiliated with the response from Dr.Satish Gupta when she made enquiry after consulting Dr.Satsih Agraharam and Dr.Milind Bhide. The complainant has stated that:
I submit that armed with the information , I approached the opposite party and questioned the doctors there. There was now a marked change in the attitude of the doctors and the response from them was also not only harsh but also irresponsible. I demanded to know why the doctor of my choice was not allowed to perform the Lasik Surgery to which Dr.Satish Gupta became philosophical and said whatever has to happen, happens and they are not gods and errors do happen I was showecked by the response and level of professionalism exhibited by the opposite partys doctors I submit that not knowing what to do I was made to go from pillar to post and again consulted Dr.Saish Agraharam, who advised me to meet Dr.Srinivas K.Rao from Darshan Eye Clinic at Chennai. I met the said doctor on 10.7.2008 who examined me and reported that there were many wrinkles in the corneal flaps of both the eyes that led to loss in vision and the vision acuity di dnot improve RGP-CL
84. Thus, the complainant was humiliated by the response from Dr.Satish Gupta that she has to suffer for, whatever has to happen, happen. The opposite party has neglected to administer proper treatment to the complainant and even after undergoing Lasik, she has to wear contact lenses as seen from the prescription of the LVPrasad Eye Hospital. Therefore, the complainant is entitled to reasonable compensation against the huge compensation she claimed. The learned counsel for the opposite party-hospital has contended that the complainant has not produced any material worth its credence to support the huge damages she claimed for.
85. The Honble Supreme Court in State of Gujarath vs Shantilal Mangaldas AIR 1969 SC 634. held the compensation to mean..In ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation is to be determined and given . If it were to be in terms of money along, the expression paid would have been more appropriate.
86. The Supreme Court held that the compensation to be awarded is to be fair and reasonable. In Charan Singh vs Healing Touch Hospital and others 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the change it brings in the attitude of the service provider.
87. The Court held While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge.
88. In the light of the facts of the case and on application of the ratio laid in the aforementioned decisions, this Commission quantifies the amount to be paid as compensation to the complainant at `3,00,000/-(Rupees Three lakh only).
89. In the result, the complaint is allowed directing the opposite party to pay an amount of `3 lakh (Rupees three lakh only) within one month from the date of receipt of the order failing which the opposite party shall pay interest @ 9%p.a. on the amount. The costs of the proceedings quantified at `5,000/-.
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MEMBER Dt.28.12.2012 KMK APPENDIX OF EVIDENCE WITNESSES EXAMINED For complainant for opposite party NIL Nil EXHIBITS MARKED For complainant Ex. A1 Copy of the Prescription / case sheet of Maxivision dated 17.06.2001 Ex. A2 Prescription of Dr. Satish Agraharam of VRI, Tarnkaka, Secunderabad, dated 02.06.2008 Ex. A3 Prescription of Dr. Milind Bhide of Hyderabad Eye Care Centre, dated 03.06.2008 Ex. A4 Prescription of Dr. Srinivas K Rao of Chennai Darshan Eye Clinic dated 10.07.2008 Ex. A5 Prescription of Dr. Mitta of Prema Eye Care Centre dated 26.04.2010 Ex. A6 Prescription of Syed Maaz mohiuddin of New Vision Laser Centre, Hyderabad dated 07.06.2010 Ex. A7 O/c of the legal notice dated 26.11.2008 Ex. A8 Reply notice of the opposite party dated 05.01.2009 Ex.A9 Advertisement issued by the opposite partying the newspaper.
Ex.A10 Prescription of Dr. Milind Bhide Ex.A11 Darshan Eye Clinic Ex.A12 Ms. V. Prasanna Lakshmi examined.
Ex.A13 Letter to Maxivision Laser Centre Pvt ltd Ex.A14 Letter to Sri. . Ranganathan , Advocate.
Ex.A15 The advertisement issued by the opposite party in the news paper.
Opposite parties Ex.B1 Xerox copy of ORBIS Ex.B2 Artists rendering of the ORBIS International DC-10 Ex.B3 The ORBIS DC-10 in flight Ex.B4 The ORBIS DC-10 Ex.B5 Andhra Pradesh Ophthalmological Society certificate Ex.B6 Joint Meeting of XXIV International Congress of Ophthalmology and American Academy of Ophthalmology.
Ex.B7 The University of Rochester School of medicine and dentistry and Strong Memorial Hospital Ex.B8 All India Ophthalmological Society Ex.B9 All India Ophthalmological Society Ex.B10 xerox copy Ex.B11 Certificate of Attendance Ex.B12 American Academy of Ophthalmology Ex.B13 Certificate of Attendance Ex.B14 Certificate of Attendance Ex.B15 International society of Refractive Surgery Ex.B16 Certificate of Recognition Sd/-
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