State Consumer Disputes Redressal Commission
R.P.Mittal vs Thind Eye Hospital on 11 May, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 6 of 2012
Date of institution: 27.1.2012
Date of Decision: 11.5.2015
Dr. R.P. Mittal, Chief Medical Officer (Retired) now resident of Kothi No.
446, Block-C, Rajindera Estate, Moga.
.....Complainant
Versus
1. Thind Eye Hospital Limited, 701-L, Mall Road, Model Town,
Jalandhar City, Pin-144003 (Punjab) India, through its Managing
Director/Chairman/Authorised Signatory.
2. Dr. Jaswant Singh Thind, Chief Eye Surgeon, Thind Eye Hospital
Limited, 701-L, Mall Road, Model Town, Jalandhar City Pin 144003
(Punjab) India.
3. The New India Assurance Company Ltd. through its Branch
Manager, 36, Gobind Niwas, G.T. Road, Jalandhar
(arrayed party as per order dated 30.5.2012)
.....Opposite Parties
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the complainant: Sh. S.C. Jindal, Advocate
For OPs Nos. 1&2 : Sh. Vishal Aggarwal, Advocate
For Op No. 3 : Sh. Rahul Sharma, Advocate
2
CONSUMER COMPLAINT NO. 6 OF 2012
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The complainant has filed this complaint under the Consumer Protection Act, 1986(in short 'the Act') against the opposite parties(in short the OPs) on the averments that he approached the Ops for the purpose of check up and treatment of his vision in right eye on 5.4.2011. The concerned Doctor of OP Hospital after recording the brief history in which he told that he is a patient of diabetic and hyper tension, advised the complainant to go through cataract surgery of his right eye. He also assured that after the operation the complainant will be in a better position and accordingly, he approached to undergo the cataract operation and deposited a sum of Rs. 22,000/- as directed by the Ops on 5.4.2011 against registration No. 298904 whereas the OPs as per the medical terminology, before undergoing the surgery were required to go for pre-operative tests like blood, cholesterol, fungus and ECG tests etc. but they did not bother to go for those tests and on the same day, the operation was performed. There was a news publication in Daily Dainik Jagran dated 26.4.2011 wherein it was clearly suggested that treatment of retinopathy is before performing the cataract surgery but the Ops ignored that fact. After a few days of the operation, the complainant felt some uneasiness in his right eye and problem in the vision, therefore, he again visited the OPs on 22.4.2011 and they checked both the eyes and prepared a treatment chart and assured the complainant that the trouble will be disappeared within a few 3 CONSUMER COMPLAINT NO. 6 OF 2012 days. Complainant again felt some problem in the vision of his right eye on 27.4.2011 and 28.4.2011 and he again approached the OPs Hospital on 30.4.2011 and asked them to check his eyes, which was checked and OP's Doctor again assured that in cataract surgery, some complication can occur but he will get better eye vision within a few days. In the prescription report dated 22.4.2011 and 30.4.2011, he found a lot of difference. On 22.4.2011, his right eye vision was +2.50 and left eye vision +4.00 and on 30.4.2011 his right eye vision was +0.00 and left eye +1.50, which shows that the left eye vision had improved. Despite the fact that no treatment was done, although there was improvement in the right eye vision but still he was feeling uneasiness to see without glasses and he had to use glasses +3.00, therefore, these reports are self contradictory. After the operation, the vision of his right eye had deteriorated further, which has caused physical and mental harassment to the complainant. Hence, the complaint with a direction to the Ops to pay Rs. 10,00,000/- due to loss of vision, Rs. 8 lacs for mental harassment and Rs. 3 lacs for physical harassment alongwith cost of litigation.
2. The complaint was contested by the Ops, who filed written reply taking preliminary objections that the complaint is liable to be dismissed for concealment of material facts and mis- representation; the complainant himself is a Doctor and has intentionally mis-represented and concocted the facts and tried to cheat and defame the Ops. In fact the complainant had approached the Ops for the first time on 4.11.2009 for getting his eyes examined. On examination by OP No. 2, it was found that the complainant was 4 CONSUMER COMPLAINT NO. 6 OF 2012 having cataract in both the eyes and also suffering from the disease called as Diabetic Retinopathy, which was due to diabetic, causing damage to the Retina. The patient was required to undergo treatment for the same. Medicines were given by injecting the same in the eyes and thereafter laser is done which takes care of Diabetic Retinopathy and thereafter, the treatment of Cataract is to be done. The record shows that it was recommended and explained to the complainant. However, the complainant refused to get the treatment and only got done treatment for Diabetic Retinopathy for left eye, which was done in three sittings on 4.11.2009, 10.11.2009 and 17.11.2009 and the same was successful and the vision of the left eye has improved considerably. The complainant was informed that failure to got complete treatment of his eye, may lead to further deterioration of his vision. After a gap of 1½ years, he came to the OP on 5.4.2011, he was duly examined and it was found that his left eye Diabetic Retinopathy had cured while Cataract had not gone and was almost in the same position as it was earlier, whereas qua the right eye, the cataract had increased and when the fundus was checked, the same was not clearly visible due to the increased cataract. Accordingly, he was advised treatment for cataract under guarded prognosis i.e. after cataract surgery, the fundus was rechecked and then the treatment for Diabetic Retinopathy was to be given. The complainant was explained the entire position but he was negligent in getting the treatment done for no rhyme and reason nor believing the Ops. As per the record his vision has not deteriorated as it is still 6/18 and has actually improved; the complaint is also liable to be dismissed on 5 CONSUMER COMPLAINT NO. 6 OF 2012 account of delay; the complainant has failed to prove any case of medical negligence because his allegations are not supported by any expert evidence. Whereas the newspaper report as referred in the complaint is quite different than the disease of the complainant. The Ops have conducted the operation as is required from ordinary skilled doctor and according to the medical standards. No case of any medical negligence is made out. On merits also, the averment as stated in the preliminary objections were reiterated. Other averments as alleged in the complaint were denied. It was further reiterated that no case of medical negligence is made out. The vision of the right eye of the complainant has increased. The treatment was given according to standard medical practices. The complaint has been filed just to defame the Ops and to extract money from them.
3. The parties led evidence in support of their evidence.
4. In support of his allegations, the complainant had tendered into evidence affidavit of Dr. R.P. Mittal as Exs. C-1/A & C- 1/B, affidavit of Dr. Tarsem Lal Ex. C-1/C, prescription slips and bills Exs. C-1 to C-8, newspaper cutting Ex. C-9, letter dt. 16.5.2011 Ex. C-10, admission & case details dt. 29.10.12 Ex. C-11, bill Ex. C-12, bill dt. Ex. C-13, prescription slip Ex. C-14, order dt. 2.3.01 Ex. C-15, letter dt. 4.11.2004 Ex. C-16, certificate Exs. C-17 & 18, newspaper cutting Ex. C-19, certificate Ex. C-20, essentiality certificate Ex. C-21, certificate regarding treatment Exs. C-22 to 25. On the other hand, Op No. 1 had tendered into evidence affidavit of Dr. Jaswant Singh Thind Ex. Op-1/A, documents Exs. OP-1/1 and II and 6 CONSUMER COMPLAINT NO. 6 OF 2012 affidavit/prescription slip Ex. R-A, reference Ex. R-2, transcription Ex. R-3, CD Ex. R-4.
5. We have heard the learned counsel for the parties and have gone through the written submissions filed by the counsel for the complainant.
6. In case we go to the history of the case on 5.4.2011, the complainant had approached the Ops to check his vision specifically right eye and cataract surgery was performed, although Diabetic Retinopathy was referred but it was not done before that. Even pre- operative tests were also not done, which has caused damage to the vision of the complainant and accordingly, case of medical negligence has been alleged against the Ops.
7. Firstly coming to the pre-operative tests. The counsel for the complainant has alleged that although in the history of the case at the time of his admission in the OP hospital, he has referred that he was suffering from Diabetic and Hyper Tension but the OPs were required to go for pre-operative tests such like blood, cholesterol, fungus and ECG tests etc. but those tests were not done before conducting the operation, a reference has been made to the order passed by the Hon'ble National Commission 2007(1) CPC 672 "Dr. S.K. Govil versus Smt. Saroj Gupta". It was also a case of cataract surgery and the patient had suffered due to the negligence of the Doctor during the performance of the operation. In that case, it was held that pre-operative tests, just like blood sugar, cholesterol, fungus and ECG tests were not done. In case we go through the entire judgment of this case, this was one aspect apart from that the Ops 7 CONSUMER COMPLAINT NO. 6 OF 2012 were negligent in administration of anaesthesia, operation theatre was not well equipped with all miscroscopic instruments and all other emergency services for lens implantation surgery. The operation was done casually without keeping in view due care and precaution, as a result of which there was extensive Choroidal detachment and manipulations were made in the consent letter and history sheet. Therefore, negligence is to be adjudged from the facts of each case. What was negligence in the referred case, those circumstances may not be existing in the present case. Mainly the allegations of the complainant are that before going for cataract surgery, Diabetic Retinopathy was required to be done, which has not been done, which will be discussed in the forthcoming paragraphs whether cataract surgery was required first before going for diabetic retinopathy but here we are concerned with the pre-operative tests referred above. Prima-facie the complainant has not been able to refer what damage was done to his vision on account of not going for these pre-operative tests. In case we will go through the subsequent reports, the vision of the right eye had improved but the version of the complainant is that he was not seeing properly without using the specks and spectacles +3.00 were being used by him. Otherwise he has not pointed out what harm has happened to his treatment in case these pre-operative tests referred above were not got done by the Ops before going for cataract surgeries, otherwise as per the hospital record as told by the complainant, the findings were recorded in the case history that the complainant was suffering from hyper tension and diabetic, in those conditions, the Doctor was the best person to 8 CONSUMER COMPLAINT NO. 6 OF 2012 see whether cataract surgery was to be done or not done? In case it has been done according to standard medical practices then we have to further check what deficiency or negligence has been there in conducting the surgery. Therefore, we are of the opinion that there is no specific evidence, no expert evidence on the record what was the medical negligence on the part of the Ops in case they have not gone for pre-operative tests before conducting the cataract surgery, therefore, the Ops cannot be held to be negligent in conducting the surgery in case the required pre-operative tests were not done.
8. Next point raised by the complainant is that retinopathy should have been conducted before cataract surgery and he has relied upon some news cutting Ex. C-9 but what is the basis of that news item has not come on the record. The complainant himself is a Doctor, he should come with the medical literature to prove this fact that retinopathy is required before the cataract surgery but again it depends upon case to case. Sometimes without cataract surgery, retinopathy may not be possible. The counsel for the OP has relied upon the medical literature Ex. R-2, dealing with the Diabetic Retinopathy and Cataract and it has been observed as under:-
"The decision to perform cataract surgery in a patient who is diabetic relies on the generally accepted determinants of visual disability. Sometimes a cataract may not be visually disabling, but rather, is dense enough to preclude an adequate view for either diagnosis or treatment. Cataract extraction, then, is recommended for both diagnostic and therapeutic reasons. Follow-up with serial dilated examinations postoperatively 9 CONSUMER COMPLAINT NO. 6 OF 2012 should always be performed at close intervals, with photocoagulation given if inducated."
9. In case the cataract is dense then cataract surgery is required before going for diabetic retinopathy and according to that procedure for the right eye, the ops have first gone for cataract and diabetic retinopathy was recommended but the complainant did not come for that. Even the written reply filed by the OP make it clear that for the left eye, they have done retinopathy but the complainant did not come for the cataract. Therefore, it depends from case to case whether the cataract surgery is to be performed before retinopathy and it is the Doctor, who is the best person to judge, which require the first surgery. In case we go through the documents produced on the record by the complainant as well as the OP, Ex. C-3 is the admission record dated 5.4.2011 wherein it has been mentioned that wherein there is a reference of CRE means cataract right eye and it also referred PDR, which means proliferators diabetic retinopathy, therefore, both the surgeries were recommended, although at the first instance, it was the cataract surgery again when his vision was checked on 22.4.2011 Ex. C-6, again retinopathy was recommended. With regard to the eye vision, there is no report of right eye sight vision before 22.4.2011, as on 22.4.2011(Ex. C-7), it was as under:-
Distance Spl Cyl Axis Vision Right Eye - - - 6/18 Left Eye +1.50 +.50 180 6/18 Near Right Eye +2.50 - - N18 Left Eye +4.00 +0.50 180 N18 10 CONSUMER COMPLAINT NO. 6 OF 2012
and it was again checked on 30.4.2011 and the report is as under:-
Distance Spl Cyl Axis Vision Right Eye +00.00 +00.00 000 6/36 Left Eye +1.50 +0.50 180 6/18 Near Right Eye +0.00 +00.00 000 Left Eye +1.50 +0.50 180 N9
The chart shows that the vision had improved although advice was given to use the glasses. In case advice was given to use the glasses, it does not mean that there is a deterioration to the eye vision of the complainant. Rather the data referred above, shows improvement in the vision of the complainant.
10. The counsel for the OP has relied upon the judgment 2005(6) SCC 1 "Jacob Mathew versus State of Punjab & Anr." that an error of judgment or accident is not proof of negligence on part of medical professional. The counsel for the OP has contended that at the most it can be an error of judgment that again does not amount to medical negligence in view of the judgment referred above. In fact the complainant himself is a Doctor and he has filed this complaint to get undue benefit from the Ops. He has placed on the record the recorded version Ex. R-4 and its transcription version Ex. R-3, which has not been rebutted by the complainant, its authenticity has also not been challenged by the complainant and in case we go through it, it means that the complainant wants to settle the issue somewhere or to some amount. In the total analysis, we are of the opinion that the 11 CONSUMER COMPLAINT NO. 6 OF 2012 complainant has not been able to prove any case of medical negligence against the Ops.
11. The complaint of the complainant is hereby dismissed, with no order as to costs.
12. The arguments in this consumer complaint were heard on 4.5.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
13. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member May 11, 2015. (Surinder Pal Kaur) as Member