State Consumer Disputes Redressal Commission
Dr. P.M. Ramakrishnan vs M.K. Yesoda on 1 July, 2011
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. 216/2003 (Arisen out of Order Dated null in Case No. of District ) 1. P.M Ramakrishnan Eye Specialist,Illathazha,Thalassery BEFORE: HONARABLE MR. SRI.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.216/2003
JUDGMENT DATED 01/07/2011
PRESENT:
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SRI. M.K. ABDULLA SONA : MEMBER
Dr. P.M. Ramakrishnan
Eye Specialist,
Illaththazha Road, : APPELLANT
Thalassery - 670 103
(By Adv. Sri. M.K. George)
Vs.
M.K. Yesoda
W/o late K.K. Kunhiraman Vydiar, : RESPONDENT
Padmalayam, P.O. Palayad.
(By Adv. Sri. P.V. Surendranath)
JUDGMENT
SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER Appellant is the opposite party and respondent is the complainant in OP.21/97 on the file of CDRF, Kannur. The complaint therein was filed alleging medical negligence amounting to deficiency in service on the part of the opposite party Dr.P.M.Ramakrishnan in medically treating the complainant in connection with the complainant's cataract to her left eye. The complainant claimed a sum of Rs.2,50,000/- as compensation for the alleged deficiency in service on the part of the opposite party.
2. The opposite party entered appearance and filed written version denying the alleged deficiency in service in treating the complainant by the opposite party. It was contended that the opposite party conducted the medical treatment and the surgical procedures with utmost care and caution and there was no negligence on his part in the said procedures adopted by the opposite party in treating the complainant. Thus, the opposite party prayed for dismissal of the complaint in OP.21/97.
3. Before the Forum below, the complainant was examined as PW1. An expert doctor namely B.V.Bhatt was examined as PW2 and the son of the complainant was examined as PW3. Exts. P1 to P 44 documents were marked on the side of the complainant. The opposite party was examined as DW1 and the original case sheet maintained at Josegiri Hospital in connection with the treatment of the complainant was marked as Ext. R1. The case sheet of the complainant maintained in Asoka Hospital, Kannur was marked as Ext.X1. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 19th November 2001 allowing the complaint partly and thereby directing the opposite party to pay a sum of Rs.22,720/- as compensation for deficiency in service to the complainant with cost of Rs.250/-. Hence the present appeal.
4. We heard both sides. The learned counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on the testimony of PW2, Dr. B.V.Bhatt and argued for the position that there is nothing on record to prove negligence or deficiency in service on the part of the appellant/opposite party. It is further submitted that the Forum below failed to appreciate the available evidence on record in its correct perspective and that the Forum below cannot be justified in coming to the conclusion that the infection to the left eye of the complainant was caused as a result of the medical negligence on the part of the opposite party. It is also submitted that there is nothing on record to show that the opposite party used un-sterilized forceps for removal of the suture from the eye of the complainant and that the opposite party failed to apply medicines for preventing infection. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below and argued for the position that the infection to the left eye of the complainant was caused as a result of the negligence and deficiency in service on the part of the appellant/opposite party doctor. Thus, the respondent prayed for dismissal of the present appeal.
5. The points that emerge for consideration in this appeal are:-
1. Whether the respondent/complainant has succeeded in establishing her case regarding medical negligence and deficiency in service on the part of the appellant/opposite party?
2. Whether the Forum below can be justified in holding that the complaint in OP.21/97 is not barred by limitation?
3. Is there any legally sustainable ground to interfere with the impugned order dated 19th November 2001 passed by CDRF, Kannur in OP.No.21/97?
6. POINTS 1 TO 3 There is no dispute that the respondent/complainant approached the appellant/opposite party with the complaint of poor vision to her left eye. Admittedly, the vision to the left eye of the complainant was adversely affected by the development of cataract and that the appellant/opposite party ophthalmologist advised surgery for removal of the cataract to her left eye. It is to be noted that about 5 years back the respondent/complainant had cataract problem to her right eye and that cataract was removed by the appellant/opposite party doctor by surgery. The complainant Smt. Yesoda was fully satisfied with the surgical procedure and treatment adopted by the appellant/opposite party Dr. P.M.Ramakrishnan in doing the cataract surgery for the complainant's right eye. PW2, the expert ophthalmologist who had the opportunity to examine the complainant has deposed that the complainant is having minimum vision for her right eye and that the vision to her right eye is 6/18 and the same is fairly a good vision. It is also deposed by PW2 that the normal vision is 6/6. It is only because of the complainant's satisfaction to the procedure adopted by the doctor P.M.Ramakrishnan, the complainant approached the very same doctor for getting the cataract removed for the left eye of the complainant.
7. The appellant/opposite party as DW1 has deposed about the qualification and vast experience he attained as an ophthalmologist. Respondent/complainant has no doubt about the competency and expertise of the appellant/opposite party Dr.P.M.Ramakrishnan in doing the cataract surgery and further treatment for the same. Thus, it can be concluded that the appellant/opposite party is a competent and expert ophthalmologist to conduct surgery for removal of cataract and in treating the patient after the cataract surgery.
8. There is no dispute that the respondent/complainant was admitted in Josegiri hospital for conducting cataract surgery. She was admitted by the appellant/opposite party doctor P.M.Ramakrishnan. The said admission was on 6.10.94 and cataract surgery of the left eye was done on 7.10.04. She was discharged from the hospital on 13.10.94. The complainant as PW1 has categorically admitted the fact that after the surgery to her left eye, she regained vision for her left eye. The aforesaid admission would make it clear that the surgery to the left eye of the complainant was successful. There is no case for the respondent/complainant that there was any negligence on the part of the appellant/opposite party in performing the surgical procedure. More over, there is nothing on record to show that there occurred any negligence or deficiency in service on the part of the appellant/opposite party in doing the cataract surgery to the left eye of the complainant.
9. PW2, the expert ophthalmologist who was cited as a witness from the side of the complainant has categorically deposed that the cataract surgery to the left eye of the complainant was successful and that the infection to the operated left eye after the lapse of 2 ½ months would show that there was no infection to the left eye on or immediately after the cataract surgery. PW2, doctor B.V.Bhatt had the occasion to treat the complainant on 12.1.95 at Asoka Hospital, Kannur. It is come out in evidence that the complainant approached PW2 with infection to her left eye which was operated for cataract on 7.10.94. It is at the advice of PW2, the infected left eye ball was removed by surgery known as evisceration.
10. It is deposed by PW2 that evisceration was done to avoid spreading of infection to the brain and other parts of the skull. Thus, PW2 ophthalmologist had the opportunity to examine the complainant. The aforesaid evisceration procedure was done at Asoka Hospital, Kannur and the complainant was discharged from the hospital on 22.1.95. PW2 has no case that there was any medical negligence or deficiency in service on the part of the appellant/opposite party in doing the cataract surgery or subsequent treatment and management.
11. The definite case of PW2 is that the evisceration resulted due to infection to the left eye and that the said infection of the left eye is known as pan-ophalmitis. It is deposed by PW2 that pan-ophalmitis can be caused due to other reasons and that antibiotics and anti- inflammatory drugs are the medicines to be given to a patient having pan-ophalmitis. It is categorically deposed by PW2 that the drugs prescribed and given to the complainant at the instance and instruction of the appellant/opposite party are the proper and usual drugs which are to be administered for the said complication. PW2 further deposed that the procedures adopted by the appellant/opposite party doctor are the proper procedures. He could not find fault with the procedures adopted by the opposite party doctor in doing the surgery and also in further management by the opposite party doctor. Thus, the evidence of PW2 would not give any indication regarding medical negligence or deficiency in service on the part of the opposite party in treating the complainant.
12. PW2, the expert ophthalmologist is of the opinion that the infection to the operated left eye of the complainant happened due to indigenous infection without any external interference. It is the opinion of PW2 that the infection was caused through the blood stream and the infection was caused to the eye since eye is delicate organ. It is also deposed by PW2 that resistance power of aged patients like the complainant will be poor. It is come out in evidence that at the time of cataract surgery, the complainant was aged more than 65 years. PW2 is also definite on his opinion that the infection was caused not as a result of the surgery. It is also deposed by PW2 that infection can occur in spite of all acceptable precautions.
He also deposed that the medicines prescribed by the appellant/opposite party doctor are the standard medicines being prescribed to control such infections. It is the valuable opinion of PW2 that in some patients even after administration of such drugs, the infection cannot be controlled and it will result in pan-ophalmitis. Thus, the expert evidence tendered by PW2 is sufficient enough to absolve the appellant/opposite party from the liability to pay compensation for the alleged medical negligence. In other words, the evidence of PW2 would suggest that there was no medical negligence or deficiency in service on the part of the appellant/opposite party as the doctor who treated the complainant for her cataract problem. If that be so, the Forum below cannot be justified in finding the appellant/opposite party as guilty of deficiency in service.
13. The case of the respondent/complainant is that the appellant/opposite party doctor removed the suture with un-sterilized forceps and with un-clean hands. But, there is nothing on record to show that the appellant/opposite party doctor removed the suture in an un-hygienic condition without taking proper precautionary measures to avoid infection. The opposite party doctor as DW1 has categorically deposed that he applied anesthetic eye drops to avoid pain and he used only sterilized forceps for removal of the suture and that the said procedure was done in a sterilized condition. PW2, the expert Ophthalmologist has also deposed that no Ophthalmologist will remove the suture with unclean hands and no doctor will use un-sterilized forceps for removal of the suture. It is also deposed by PW2 that suture can be removed from the consultation room of the Ophthalmologist and removal of a suture is a minor procedure. The mere fact that the details of the procedure for removal of the suture are not given in the case sheet or in the prescription cannot be taken as a ground to hold that the opposite party doctor failed to adopt the proper procedure in removing the suture. It is to be noted that such details of the procedure are not given in Ext. X1 case sheet maintained in Asoka Hospital. It is too much to say that the doctor should enter all the details like using of sterilized forceps and washing of hands etc in the case sheet or in the prescription. In the ordinary course such minute details will not be incorporated in the prescription or in the case sheet. It would only say that the suture was removed on such and such date. Thus, there is nothing to doubt the testimony of DW1 that the suture was removed by taking all the standard procedure and necessary precautionary measures. The aforesaid testimony of DW1 is strengthened by the oral testimony of PW2, the expert ophthalmologist. But, the Forum below simply followed the case of the complainant that the opposite party doctor removed the suture with unclean hands and with unsterilized forceps. There is nothing to infer negligence or failure in following the proper procedure by the opposite party doctor. Thus, the aforesaid finding of the forum below is liable to be set aside. Hence we do so.
14. The burden is heavily upon the complainant to prove the alleged medical negligence and deficiency in service on the part of the opposite party doctor. But the complainant miserably failed in establishing the alleged medical negligence and deficiency in service on the part of the opposite party doctor P.M.Ramakrishnan in treating the complainant. The expert evidence adduced from the side of the complainant by examining the expert Dr.B.V.Bhatt (PW2) would only support the case of the opposite party doctor P.M.Ramakrishnan. The available evidence and also the facts and circumstances of the case would suggest that the untoward incident of infection to the operated left eye of the complainant happened not due to the negligence or deficiency in service of the opposite party P.M.Ramakrishnan. It would show that the infection was caused without the intervention of any external agency and that the infection was detected and proper treatment was given. But, unfortunately the infection could not be controlled and it resulted in evisceration of the left eye. It is too much on the part of the complainant to attribute medical negligence and deficiency in service on the part of the opposite party doctor P.M.Ramakrishnan. It can be seen that the opposite party Dr.P.M.Ramakrishnan was totally innocent in the matter and he cannot be fastened with the liability to pay compensation to the complainant.
15. The appellant/opposite party has also contended that the complaint in OP.21/97 is barred by limitation. But the Forum below rejected the said contention of the opposite party. It is an admitted fact that the complaint in OP.21/97 was filed on 10.1.97. The complainant was discharged from Asoka Hospital, Kannur only on 22.1.95. According to the complainant she got the information regarding the negligence on the part of the opposite party/doctor when she approached PW2 doctor B.V.Bhatt for her treatment in that hospital on 12.1.95. It is also to be noted that the complainant was undergoing treatment under the opposite party till 9.1.95. So, the complaint filed on 10.1.97 can be treated as one filed within he stipulated time of 2 years from the date of the alleged cause of action. The complainant was discharged from Asoka Hospital, Kannur only on 22.1.95. If that be so, the Forum below is justified in holding that the complaint is not barred by limitation. The aforesaid finding of the Forum below is to be upheld. But, the Forum below cannot be justified in finding the opposite party doctor as negligent in rendering service to the complainant. The Forum below is also not justified in directing the opposite party/doctor to pay compensation of Rs.22,720/- to the complainant. Thus, the impugned order passed by the Forum below is liable to be set aside and the complaint in OP.21/97 is to be dismissed. Hence we do so. These points are answered accordingly.
In the result, the appeal is allowed. The impugned order dated 19.11.2001 passed by CDRF, Kannur in OP.21/97 is set aside and the complaint therein is dismissed. The parties are directed to suffer their respective costs through out.
M.V. VISWANATHAN : JUDICIAL MEMBER M.K. ABDULLA SONA: MEMBER [HONARABLE MR. SRI.M.V.VISWANATHAN] PRESIDING MEMBER