State Consumer Disputes Redressal Commission
Grover Eye Laser & E.N.T. Hospital vs Mrs.Avinash Kaur on 7 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 107/2014 Date of Institution 25/3/2014 Date of Decision 07/04/2014 1. Mrs.Avinash Kaur wife of Mr.Manmohan Singh Puri, resident of House No.2931, Sector 37-C, Chandigarh. 2. Mr.Manmohan Singh Puri, son of Mr.Gurcharan Singh resident of House No.2931, Sector 37-C, Chandigarh. ..Appellants/Complainants V E R S U S 1. Grover Eye Laser & E.N.T. Hospital, through Dr.Rohit Grover, Head Consultant, House No.140, Sector 35-A, Chandigarh. 2. Dr.Rohit Grover, Head Consultant, Grover Eye Laser & E.N.T. Hospital, House No.140, Sector 35-A, Chandigarh. 3. The New India Assurance Co. Ltd. through its Branch Manager, SCO No.15, Sector 30-D, Chandigarh (impleaded vide order 18.09.2013 passed by the District Forum) ----Respondents/Opposite Parties Argued by: Sh.Ashish Bansal, Adv. for the appellants. Sh.Vinod Chaudhri, Adv. for the respondents. First Appeal No. 110/2014 Date of Institution 26/3/2014 Date of Decision 07/04/2014 1. Grover Eye Laser & E.N.T. Hospital, through Dr.Rohit Grover, Head Consultant, House No.140, Sector 35-A, Chandigarh. 2. Dr.Rohit Grover, Head Consultant, Grover Eye Laser & E.N.T. Hospital, House No.140, Sector 35-A, Chandigarh. 3. The New India Assurance Co. Ltd. through its Regional Manager, Sector 17, Chandigarh ----Appellants/Opposite Parties V E R S U S 1. Mrs.Avinash Kaur wife of Mr.Manmohan Singh Puri, 2. Mr.Manmohan Singh Puri, son of Mr.Gurcharan Singh Both residents of House No.2931, Sector 37-C, Chandigarh. ..Respondents/Complainants BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT SH.DEV RAJ, MEMBER
SMT.PADMA PANDEY, MEMBER Argued by:
Sh.Vinod Chaudhri, Adv. for the appellants.
Sh.Ashish Bansal, Adv. for the respondents.
PER PADMA PANDEY, MEMBER This order shall dispose of two appeals, bearing Nos.107 of 2014 filed by the appellants/complainants and 110 of 2014 filed by the appellants/Opposite Parties, against the order dated 19.02.2014, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it allowed the complaint filed by the complainants, qua the Opposite Parties and directed them as under: -
17. OPs No.1, 2 and 3 are directed :-
i) To make payment of an amount of Rs.9,000/- paid by the complainants to Ops No.1 and 2 at the time of cataract surgery. That amount shall be paid to complainant No.2.
ii) To make payment of an amount of Rs.70,000/- to complainant No.1 for physical and mental harassment and suffering at the hands of OPs No.1 and 2.
iii) To make payment of an amount of Rs.10,000/- to the complainant No.2 towards litigation expenses.
The liability of the OPs shall be joint and several.
18. This order shall be complied with by OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the above said awarded amount to the complainant(s) (as mentioned in para No.17 of this judgment) along with interest @9% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.
2. In brief, the facts, as alleged by the complainants, are that complainant No.1 is 76 years old. She had a complaint of reduced vision in the left eye for around two months from July, 2012 to September, 2012. Complainant No.2 is a life member of the Central Government Health Scheme (CGHS). The CMO, CGHS referred complainant No.1 to Opposite Party No.1, for surgery in the left eye, vide permission dated 29.8.2012, Annexure C-1. Complainant No.1, got her eyes checked up at the hospital of Opposite Parties No.1 and 2 on 5.9.2012. On 5.9.2012, Opposite Parties No.1 and 2 referred complainant No.1 for Phaco, IOL Surgery for the left eye vide prescription/diagnosis dated 5.9.2012, Annexure C-2. It was stated that complainant No.1 was having problems/defects, in her retina, and in order to perform surgery for lens implantation/phaco surgery for cataract, there was need to decide, as to whether, the retina was to be treated first or phaco surgery was to be performed first. On 10.9.2012 retina test was conducted. Opposite Parties No.1 and 2, found the retina of complainant No.1 to be defective. It was further stated that due to sheer greed, Opposite Parties No.1 and 2, performed surgery of cataract by charging exorbitant amount of Rs.9,000/- on the pretext that some superior lens would be inserted. It was further stated that Opposite Parties No.1 and 2 in order to earn money, performed the surgery of phaco, instead of going first for the cure of retina against the principles of medical science.
3. It was further stated that the phaco surgery with IOL for cataract was performed by Opposite Parties No.1 and 2 on complainant No.1 on 17.9.2012 and the medical report, in this regard, is Annexure C-3. Thereafter, complainant No.1 approached Opposite Parties No.1 and 2 on 18.9.2012 as there was pain and swelling, which developed in her left eye. However, Opposite Parties No.1 and 2 told her that it was a normal course and she was advised to come, on the next day for follow-up. Then Opposite Parties No.1 and 2, again checked the eye of complainant No.1 and came to know about the wrongful act done by them with regard to implanting of lens, without curing the cataract first. In fact, the pain and swelling was due to the falling and dislocation of lens inserted on 17.9.2012. However, instead of rectifying the mistake committed by Opposite Parties No.1 and 2, they tried to hush up the matter, by advising strong steroids to complainant No.1 to cover up the mistake/negligence committed by them.
4. It was further stated that the condition of complainant No.1, started worsening thereafter. Since the condition of the eye of complainant No.1, further worsened, and deteriorated, complainant No.1 was then referred to Dr.Nishant Sachdeva, an Eye Surgeon at Sri Guru Harikrishan Sahib, Eye Institute & Super Speciality Hospital, Sector 77, Mohali, Punjab, on 22.9.2012. A copy of the diagnosis report dated 22.9.2012 prepared by Dr.Sachdeva is Annexure C-4. It was further stated that after consulting Dr.Nishant Sachdeva, the complainants were shocked to discover that lens, which was claimed to have been inserted by Opposite Parties No.1 and 2 had actually got fallen, broken and dislocated during the operation itself and had resulted into further complications. It was further stated that Opposite Parties No.1 and 2, failed to inform the patient about her worsening condition and also failed to take appropriate remedy to improve the worsening condition of the patient. It was further stated that Dr.Nishant Sachdeva not only ex-implanted the broken/dislocated lens, but also tried to cure the retina problem to a large extent. It was further stated that the bad condition of complainant No.1 could not be reversed to the fullest extent, despite the corrective measures, taken by Sri Guru Harikrishan Sahib, Eye Institute & Super Speciality Hospital, and the loss caused to complainant No.1 became permanent in nature. The vision of complainant No.1 became permanently blurred, and she had been permanently put on medicines. The complainants alleged gross negligence and misconduct on the part of Opposite Parties No.1 and 2. It was further stated that complainant No.1 made a written complaint, Annexure C-5, to the Director, CGHS about the negligence committed by Opposite Parties No.1 and 2. It was further stated that Opposite Parties No.1 and 2, then replied to the representation, filed by complainant No.1, Annexure C-6. It was further stated that Opposite Parties No.1 and 2 failed to perform their duty and made the complainants to suffer a lot by performing the medical surgery negligently, carelessly and without any due care. The complainants claimed compensation for medical negligence constituting deficiency in service, but to no avail. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
5. In their written reply, Opposite Parties No.1 and 2 stated that Opposite Party No.1 is an Eye & ENT Hospital established in 1962, and is staffed by highly qualified doctors trained in Premier Institutions. These doctos provide services to patients from all over Punjab, Haryana, Himachal, J&K, Rajasthan and other far off places. It is the only CGHS approved eye hospital in Chandigarh.
It is also on the approved panel of many Govt. bodies & Banks. It was stated that Opposite Party No.2 is a qualified MBBS, M.S.(Opthalmology) doctor and he has been pioneer in this region in the field of Phaco & Foldable I.O.L.S since 1994. It was further stated that the present complaint did not deserve to be entertained by the Forum in the absence of medical/expert opinion as per the guidelines issued by the Honble Apex Court in Jacob Mathew Vs. State of Punjab (2005) 6 SSC 1. It was admitted that complainant No.1 visited Opposite Party No.2, at his hospital, on 5.9.2012 with complaints of markedly reduced vision in the left eye for the past more than two months.
6. It was further stated that when complainant No.1 visited Opposite Party No.2 she was already in possession of the permission letter granted to her by CGHS Wellness Centre No.1, Sector 45, Chandigarh with the diagnosis of cataract left eye and she was sent with permission for Phaco & PC IOL left eye i.e. cataract surgery. It was further stated that as per protocol, the CGHS issued such letter granting permission for a procedure on the basis of recommendation given by a doctor of the Government Hospital. In this case, the recommendation for cataract of complainant No.1, was made by a doctor of PGI, Chandigarh and on the basis of that recommendation, the permission letter Annexure R-1 was addressed to Opposite Party No.1. On 5.9.2012 when the complainant visited Opposite Party No.2, on her examination, she informed that major cause of poor vision in the left eye was Vitreo-Foveal traction (retina problem), from which, she was suffering in addition to cataract problem. It was further stated that complainant No.1 acknowledged being aware of the problem / defect in the retina and told that she had been so informed by the eye specialist at PGI. It was further stated that Opposite Party No.2, asked complainant No.1 to show old test reports or get fresh tests done and she secured another letter from CGHS granting permission for B/E (both eyes) OCT / Automated Visual test (Annexure R-3). The OCT test was conducted by Opposite Party No.1 on 10.9.2012 and the Vitreo-Foveal traction (retina problem) was evident in the OCT report. It was admitted that after appreciating the OCT Report, Opposite Party No.2 chose to perform the Phaco with PC IOL (cataract surgery) instead of first rectifying the retina problem (by the procedure of vitrectomy). Such a course was chosen keeping in mind the best interest of complainant No.1 since she was a poor prognosis case (where the likelihood of an unfavourable outcome of a case or surgery was the high end) as it is a firmly established medical principle that cataract surgery should be performed previous to vitrectomy (retina treatment). It was further stated that complainant No.1 wanted an upgrade in the IOL package sanctioned for her and accordingly paid Rs.9000/- from her side also. It was admitted that Phaco & PC IOL (cataract) surgery was performed by Opposite Party No.2, on complainant No.1, on 17.9.2012. The upgraded IOL as desired by complainant No.1 was also implanted and was noted to be in place. It was further stated that complainant No.1 was discharged on 17.9.2012 and was asked to present herself for review on 18.9.2012 (Annexure R-4). Complainant No.1 presented herself at OP No.2 on 18.9.2012 as she also had corneal fuchs endothelial dystrophy (all noted in her pre-op check records) Annexure R-2, so as expected there was some corneal haze and corneal edema on the first two days of post-op follow up. It was further stated that the guarded visual prognosis had been explained to the patient on the initial check up on 5.9.2012 and also on 17.9.2012 (Annexure R-2 & R-4). It was further stated that the IOL was in place till her last review on 19.9.2012 and there was no dislocation of lens. It was further stated that Opposite Party No.2 advised complainant No.1 to start a short course of oral steroids w.e.f. 20.9.2012 to help clear up the cornea faster and aid visual recovery (Annexure 4-A). It was further stated that the steroids were rightly prescribed as the same were the most popular choice in post-cataract surgery, especially in case of Fuchs Endothelial Dystrophy. It was further stated that the dislocation of IOL had not occurred till 19.9.2012 and, therefore, there was no question of any remedial measures to be adopted to manage the dislocated lens. It was further stated that the median interval between cataract surgery and IOL (lens) dislocation is 14 weeks (range, 0 days 5 years). The median interval between IOL (lens) dislocation and surgical management is 6 weeks (range, 0 days 4 years). It was denied that IOL (lens) inserted and implanted by Opposite Party No.2, had fallen, broken and dislocated during the operation itself. It was further stated that there was no negligence on the part of Opposite Parties No.1 and 2. It was further stated that intraocular lens (IOL) dislocation reportedly occurs in 0.2% to 1.8% of patients after cataract surgery. Dislocation of lens in the post operative period might develop because of external or internal forces. It was further stated that Opposite Party No.2 in all his wisdom, guided by the accepted scientific and medical norms undertook the cataract surgery and after a successful surgery discharged complainant No.1 on 17.9.2012. It was further stated that complainant No.1 was asked to follow up after a few days which she did not comply with. However, instead the patient i.e. complainant No.1, her daughter, husband of her daughter visited Opposite Party No.2 on 22.9.2012 and told that they took complainant No.1 to an eye hospital at Sohana, where the condition of the dislocated IOL (lens) had been noted after dilating the pupil. It was further stated that dislocation was subsequent to 19.9.2012 as during the post operative check up on 19.9.2012 the IOL (lens) was noted to be in place by Opposite Party No.2. It was further stated that on 22.9.2012 Opposite Party No.2 asked the daughter and husband of complainant No.1, to have the follow up with Opposite Party No.2, so that appropriate remedy/re-surgery for the complication could be performed. It was further stated that complainant No.2 made a representation to the Director, CGHS on 24.9.2012, imputing negligence to the answering Opposite Parties and the Additional Director, CGHS, directed the complainants to consult them(answering Opposite Parties) for further treatment (Annexure R-5). It was further stated that in their reply (Annexure R-6), the answering Opposite Parties expressed willingness to the Additional Director, CGHS, Chandigarh to take up complainant No.1 for further treatment i.e. Vitrectomy Surgery (PPV) of the left eye with Trans-Scleral Fixation / Glued IOL. However, as mentioned in the complaint, the Vitrectomy, retina surgery was done on 10.10.2012 at Sri Guru Harkrishan Sahib (C) Eye Hospital Trust Sohana and SFIOL (Scleral Fixated IOL) was done on 23.11.2012. It was further stated that, the Opposite Parties were neither negligent, in rendering service nor indulged into unfair trade practice. The remaining allegations were denied, being false.
7. Opposite Party No.3 was duly served but it failed to appear despite service, and hence it was proceeded against exparte on 25.11.2013 by the District Forum.
8. The Parties led evidence, in support of their case.
9. After hearing the Counsel for the complainants, Opposite Parties No.1 and 2 and, on going through the evidence and record of the case, the District Forum, allowed the complaint, as stated above.
10. Feeling aggrieved, the instant appeals, have been filed by the parties.
11. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
12. The Counsel for the appellants/complainants submitted that the District Forum was right in holding that Opposite Parties No.1 and 2 were liable for medical negligence as they did not provide proper follow up treatment after cataract surgery was performed on complainant No.1. He further submitted that Opposite Party No.1-Hospital tried to hush up the matter by advising strong steroids when complainant No.1 complained of pain and swelling in the eye and due to concealment on the part of Opposite Party No.1-Hospital, by not telling about the disclosed lens it put the vision of the patient in danger. He further submitted that the District Forum while penalizing Opposite Party No.1-Hospital, for physical and mental harassment directed to make payment of Rs.70000/- only, whereas, the complainants had already spent Rs.40000/- for performing another surgery and spent other miscellaneous expenses for medicines on every day basis, which caused extra financial burden and, as such, the complainants were required to be awarded adequate compensation. He further submitted that the District Forum awarded meager compensation of Rs.70,000/-, which deserved to be suitably enhanced. He further submitted that the hospital ought to have been heavily penalized so as to set a precedent that, in future, vision/life of no other patient should be in danger as of complainant No.1. He further submitted that the order of the District Forum is liable to be modified by enhancing the compensation from Rs.70,000/- to Rs.5.74 lacs.
13. The Counsel for the appellants/Opposite Parties submitted that complainant No.1 aged over 76 years approached Opposite Party No.1-Hospital with a very poor vision in the left eye with Vitreo Foveal Traction (retina problem) and in addition was having a cataract problem. He further submitted that it was a known case of retina defect and she had been so informed by the eye specialists at PGI. He further submitted that it was beyond comprehension as to how the District Forum held that Opposite Parties No.1 and 2 were negligent. The negligence could be attributed, if the treatment given to the patient was not in accordance with practice accepted, recommended and followed by other professionals of their fraternity. He further submitted that in the instant case, there was neither negligence nor want of reasonable degree of care and skill on the part of Opposite Parties No.1 and 2 in the treatment given to the patient. He further submitted that Opposite Parties No.1 and 2 enjoy enviable reputation in the medical fraternity. He further submitted that a doctor is not guilty of negligence if he acted in accordance with practice accepted as proper by a reasonable body of medical fraternity. He further submitted that since the post operative recovery was satisfactory on 18.09.2012, no additional medicine were added and the patient was advised to continue with the same medication as prescribed on the discharge slip dated 17.09.2012. He further submitted that the patient never complained about the pain and swelling on subsequent visits on 18th and 19th September 2012 and, thus, no pain killer was added to the treatment. The symptoms of pain and swelling as have been told by the complainants are nothing but an afterthought. These were not even mentioned in the slip of Sohana Hospital and, at no point of time, the patient was given any pain killer by any of the Hospitals. He further submitted that the dislocation of lens does not produce pain and swelling in the eye and it could only be associated with double vision or blurred vision. He further submitted that these facts were evident on examination on serial numbering of medicines as given on 17.09.2012 and 19.09.2012. He further submitted that it was firmly medically established that a cataract surgery should be performed previous to vitrectomy i.e. retina treatment. He further submitted that the steroid treatment was rightly prescribed as this being the most popular choice in such like cases, and this assertion was also based on medical literature. He further submitted that intraocular lens dislocation was common upto 1.8% patients after cataract surgery and dislocation of lens could develop due to variety of reasons both external and internal. He further submitted that since the recovery was satisfactory, no alternate medicine was prescribed and in follow up the same treatment was carried out and there was no occasion not to produce the record of 18.09.2012. He further submitted that there was no expert opinion or document to prove the negligence on the part of Opposite Parties No.1 and 2. He further submitted that the order of the District Forum being illegal and perverse is liable to be set aside.
14. In Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others, 2010(2) Civil Court Cases 015 (S.C.), Honble Supreme Court observed as under:-
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.Singh), referred to hereinabove, holds good Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three duty breach and resulting damage.(2)
Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession . It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that can not be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
15. In the case of Jacob Mathew (Dr.) Vs. State of Punjab & Anr.-III (2005) CPJ 9 (SC), it was held by the Apex Court, that a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of the surgery would invariably be beneficial much less to the extent of 100% for the person operated upon. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the reasonable skill, in that branch of profession, which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill, with reasonable competence.
16. In Laxman Balakrishan Joshi Vs. Trimbak Bapu Godbole and Anr.-AIR 1969 SC 128, the Apex Court laid down the criteria for determination of the professional duty of a medical man. The Honble Supreme Court held that a person who holds himself out ready to give medical advice, and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.
Such a person, when consulted by a patient, owes himself certain duties viz. a duty to care, in deciding whether, to undertake the case, in deciding what treatment to give or duty of care, in administration of that treatment.
17. In applying the principles mentioned above to the facts of the present case, it is to be seen, whether Opposite Parties No.1 and 2 were deficient in giving post operative treatment to complainant No.1 and as to whether they were negligent to that effect.
18. After considering the rival contentions of the Counsel for the parties, we are of the considered view that the order of the District Forum, is liable to be set aside on the following reasons recorded hereinunder:-
a) Complainant No.1 aged about 76 years approached Opposite Party No.1-Hospital with a very poor vision in the left eye with Vitreo-Foveal traction (retina problem) and in addition was having cataract problem with a history of treatment for the same at PGI. Intraocular lens dislocation is common upto 1.8 % patients after cataract surgery and dislocation of lens could develop due to variety of reasons both external and internal, like old age, past history of the eye diseases as brought out in Surgical Management and Outcomes of Dislocated Intraocular Lenses by Mozart O. Mello, Jr. M.D. Since reportedly, there was no incidence of lens breakage during surgery, it was a phenomenon which occurred after the surgery and was unavoidable due to reason like old age, past history of eye disease. In our considered view, the said incident, by any stretch of imagination, cannot be attributed to medical negligence on the part of Opposite Parties No.1 and 2 in the follow up treatment after the surgery, which was performed on 17.09.2012, followed by the Opposite Parties No.1 and 2 prescription dated 19.09.2012, attached with Annexure R-4, wherein, it was recorded satisfactory cataract recovery. Moreover, the surgery was performed a by a team of expert surgeons of Opposite Parties No.1 and 2 and there was no reason to believe that there was medical negligence during the course of surgery.
b) The complainants failed to lead any expert evidence to prove the medical negligence, inasmuch as, that it is a firmly established medical principle, that cataract surgery should be performed pervious to Vitrectomy (retina problem). In support of this, Opposite Parties No.1 and 2 produced an extract of ASCRS EyeWorld Annexure R-9 (Colly.) before the District Forum to show that pre- vitrectomy cataract surgery might be the best option and cataract surgery should be performed previous to vitrectomy when possible.
Another literature on Macular Hole Surgery without face down positioning by Paul E.Tornambe, M.D. La Jolla, California (at page No.73 of the District Forum file) shows that it is easier for the cataract surgeon to remove the cataract before the vitreous is removed and it is easier for the retinal surgeon to perform vitrectomy surgery after the human lens has been removed. In our considered opinion, the District Forum was right to the extent in holding that Opposite Party No.2 could not be held guilty of medical negligence, if he chose to perform Phaco with PC IOL previous to vitrectomy because the same was according to accepted scientific and medical norms. Hence, it is proved that there is no medical negligence on the part of Opposite Parties No.1 and 2.
c) The Counsel for the Opposite Parties asserted that steroid treatment was rightly prescribed as this being the most popular choice in such cases and there was enough medical evidence for proving the same and, as such, prescription of steroids was an established practice in post-operative cases and does not tantamount to violation of medical protocol.
d) The cataract operation was performed on 17.09.2012 with an advice on the Discharge Summary & Post-OP Medication (Annexure R-4) to report on 18.09.2012, if pain or swelling exists. The post operative care meted out to complainant No.1 on 18.09.2012 and 19.09.2012 and the medicines prescribed on 19.09.2012 by Opposite Parties No.1 and 2 to complainant No.1 with remarks satisfactory cataract recovery clearly shows that the patient had successful cataract surgery as per the medical protocol and there was no negligence either during the cataract surgery or in the follow up treatment as alleged by the complainants. It is also evident from Annexure C-4 i.e. prescription slip given by Dr.Nishant Sachdeva of Sri Guru Harkrishan Sahib (C) Eye Institute &Super Speciality Hospital, Mohali (Pb.) that nothing was mentioned in the same to the effect that Opposite Parties No.1 and 2 were negligent in post operative follow up treatment nor that IOL fell during surgery due to their negligence. Hence, we are of the considered view that there was no negligence on the part of Opposite Parties No.1 and 2 in the follow up treatment also.
e) That the District Forum was further right to the extent in not accepting the allegation of the complainants that due to sheer greed, Opposite Parties No.1 and 2 performed surgery of cataract knowing that the retina was defective could not be accepted because the same was not supported by any medical evidence. The complainants failed to produce any medical literature or even the opinion of Dr.Nishant Sachdeva, who was subsequently consulted to prove that Opposite Party No.2 should have first rectified the retina problem by the procedure of vitrectomy before performing the cataract surgery of complainant No.1. In our considered view, the complainants failed to prove that it is an established principle of medical science that where the retina problem is persisting, first of all, it has to be treated and, thereafter, phaco surgery had to be performed. The District Forum was thus, right in coming to the conclusion that if Opposite Party No.2 chose to perform phaco with PC IOL first, it could not be held that Opposite Party No.2 made a wrong choice and this act on his part amounts to medical negligence.
19. In view of the foregoing discussion, we are of the considered view that notwithstanding what has been stated in para 18(e) supra, the District Forum was wrong in coming to conclusion that Opposite Parties No.1 and 2 remained negligent during the follow up treatment of complainant No.1 after cataract surgery on 17.09.2012, on account of which she had to undergo retina surgery on 10.10.2012 and SFIOL on 23.11.2012 at Sri Guru Harikrishan Sahib, Eye Institute & Super Speciality Hospital, Sector 77, Mohali, Punjab. Hence the order of the District Forum, being illegal and erroneous, is liable to be set aside.
20. However, Appeal bearing No.110/2014, filed by the appellants/Opposite Parties, is accepted with no order as to costs and the order of the District Forum is set aside.
21. For the reasons recorded above, the appeal bearing No.107/2014, filed by the appellants/complainants, is dismissed, with no orders, as to costs.
22. Certified copy of this order be placed in First Appeal No.110 of 2014.
23. Certified Copies of this order be sent to the parties, free of charge.
24. The file be consigned to Record Room, after completion.
Pronounced. Sd/-
07.04.2014 [JUSTICE SHAM SUNDER [RETD.] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER cmg STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 110/2014 Date of Institution 26/3/2014 Date of Decision 07/04/2014
1. Grover Eye Laser & E.N.T. Hospital, through Dr.Rohit Grover, Head Consultant, House No.140, Sector 35-A, Chandigarh.
2. Dr.Rohit Grover, Head Consultant, Grover Eye Laser & E.N.T. Hospital, House No.140, Sector 35-A, Chandigarh.
3. The New India Assurance Co. Ltd. through its Regional Manager, Sector 17, Chandigarh
----Appellants/Opposite Parties V E R S U S
1. Mrs.Avinash Kaur wife of Mr.Manmohan Singh Puri,
2. Mr.Manmohan Singh Puri, son of Mr.Gurcharan Singh Both residents of House No.2931, Sector 37-C, Chandigarh.
..Respondents/Complainants BEFORE:
JUSTICE SHAM SUNDER (RETD.), PRESIDENT SH.DEV RAJ, MEMBER SMT.PADMA PANDEY, MEMBER Argued by:
Sh.Vinod Chaudhri, Adv. for the appellants.
Sh.Ashish Bansal, Adv. for the respondents.
PER PADMA PANDEY, MEMBER Vide our separate detailed order of the even date, recorded, in connected First Appeal No.107 of 2014, titled as Mrs.Avinash Kaur and another Vs. Grover Eye Laser & ENT Hospital and others, this appeal has been accepted, with no order as to costs and the order of the District Forum has been set aside. A copy of that order be placed on this file.
2. Certified copies of the main order, alongwith this order, be sent to the parties, free of charge.
3. The file be consigned to Record Room, after completion.
Pronounced. Sd/-
07.04.2014 [JUSTICE SHAM SUNDER [RETD.] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER cmg