State Consumer Disputes Redressal Commission
Dr.G.Baskara Raja,Saraswathi Eye ... vs V.Bose.Theni Dist. on 31 May, 2024
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present: THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER
Date of appeal filed: 06.01.2017(F.A.No.52/2017) Date of appeal filed: 06.01.2017(F.A.No.11/2017) F.A.No.52/2017 & F.A.No.11/2017 FRIDAY, THE 31st DAY OF MAY 2024.
V.Bose, S/o Vanathandi Thevar, Door No.41 D, Vellaiyan Street, Karunkattan Kulam Village, Chinnamanoor Post, Uthamapalayam Taluk, Appellant in F.A.No.52/2017/Complainant Theni District.
-Vs-
1. Dr.G.Baskara Rajan, M.B.B.S.M.S.D.F.I.S., Saraswathi Eye Hospital and Research Centre, No.199, East Veli Street, Madurai - 625 001.
2. Dr.B.Bhuvana Sundari,M.B.B.S.,D.O., W/o G.Baskara Rajan, Saraswathi Eye Hospital and Research Centre, No.199, East Veli Street, Madurai - 625 001. Appellants-1&2 in F.A.No.11/2017/Opp.Parties-1&2 Counsel for Appellant/Complainant : Mr.N.Tamilmani, Advocate. Counsel for Appellants-1&2/Opp.Parties-1&2 : Mr.C.Jawahar Ravindran, Advocate. 2 Aggrieved by the award passed by the District Consumer Disputes Redressal Commission, Madurai, made in C.C.No.285/2007, dated 29.11.2016, the complainant preferred the appeal. in F.A.No.52/2017 the & opposite parties preferred the appeal in F.A.No.11/2017. These two appeals are jointly heard on 28.05.2024 and upon perusing the material records, this Commission made the following:
Common ORDER THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
1. The complainant's case : The case of the complainant is that he was working as Junior Assistant in Chinnamanur Municipality and in the year 2004 his eye sight was affected by Retinitis Pigmentosa (night blindness). In the month of November 2004 he went for treatment at Aravind Eye Hospital, Madurai and after clinical examination the doctors have informed that he was affected by Retinitis Pigmentosa and he was having 70% to 80% vision. At that time the complainant was able to drive two wheeler and he was able to write and read. For further treatment in the month of October 2005 he came to the opposite parties and after diagnosis the opposite parties have informed that the complainant apart from Retinitis Pigmentosa he was also having cataract in both the eyes, for which the opposite parties have suggested surgery and to implant intraocular lenses in both the eyes for getting eye sight. The complainant further stated that the opposite parties have assured him that he will regain the vision. But contrary to their promises the complainant lost vision completely and become 100% blindness. It is 3 his specific allegation that the opposite parties have made false representation just to extract money from the complainant. It is the case of the complainant that the opposite parties had wrongly diagnosed the eye vision and did wrong operation as if he had cataract and implanted intraocular lenses. After the operation there was complete loss of vision in both the eyes. Hence the opposite parties have committed the act of negligence and deficiency in service due to wrong diagnosis and defective operation and he filed this consumer complaint to direct the opposite parties to pay Rs.4,00,000/- with 9% interest, towards compensation and to pay Rs.5000/-for costs.
2. The opposite parties submitted, the complainant came to their hospital on 17.09.2005 with the help of two persons. He informed that for eye treatment in the month of November 2004 he went to Aravind Eye Hospital, Madurai and confirmed that he was affected by Retinitis Pigmentosa. As the treatment given by the doctors at Aravind Eye Hospital was not satisfactory and for better treatment he came to the opposite parties. The complainant informed the opposite parties that, for the past few months his eye sight was drastically deteriorated and he could not able to move without the help of others. Even he was not able to work in his office. In such a condition the complainant came to the opposite parties. At the time of clinical examination the right eye sight was 4/60 and the left eye vision was very meager only to the extent of recognizing the hand movements. Further he was having divergent Squint (khWfz;) in left eye indicating that the loss of vision had occurred even before six months. In the clinical examination by using Slit Lamp it was diagnosed that the complainant was having Posterior Cortical Cataract in both the eyes. By using opthalmoscope instrument it was noticed that in both the eyes 4 the retinal pigments were present all over the retina and retina was totally damaged.
The blood circulation in the blood vessels in retina was affected. By using A - Scan equipment his cross dimension length was measured and it was 23.07 mm on the right eye and 22.35 mm on his left eye. Immediately after clinical examination the opposite parties have informed the complainant that the Retinitis Pigmentosa is a hereditary disease and it is an incurable one.It is the contention of the opposite parties that by doing surgery for improving the blood circulation to retina and removal of cataract followed by fixing lens, the vision can improve for some period and there will not be any big change in the left eye sight. Only after explaining the condition of eye disease and type of treatment to be given and after getting consent for surgery, the opposite parties have performed the operation in the complainant's eyes. On 05.10.2005 Sclero Plastry surgery was performed on both eyes. Sutures were removed on 12.10.2005. At that time the eye sight in the right eye had improved to 6 meters (6/60) and there was no improvement in the left eye. While reviewing the complainant on 19.10.2005 the surgery wound was completely healed. On that day the right eye vision had improved to 6/24. Hence lens was fixed in the right eye and after that the right eye vision was improved to 6/18. But in the left eye there was no considerable increase in the vision. On 26.11.2005 when the complainant came for review it was noticed that in both the eyes the capsule behind the intraocular lens had thickening and it was set right by giving laser treatment. Even in the subsequent reviews the right eye vision was good and the left eye vision was only to the extent of recognizing the hand movements. For rejoining in the employment, at the request complainant, the opposite parties gave medical certificate. Though the complainant obtained receipt towards medical expenses, he 5 has not settled the dues to the opposite parties. The complainant while getting the receipt has informed the opposite parties that he was not having sufficient money and he will pay the amount after getting it from his office. But the complainant had did not pay the dues to the opposite parties. The opposite parties have given necessary, required and adequate treatment to the complainant to the best of their ability and as per the medical dictum. The operation conducted by the opposite parties is a successful surgery and the complainant had good vision. Hence there is no deficiency in service on their part and they prayed to dismiss the complaint.
3. Before the District Commission both sides filed proof affidavits, pleadings, evidences and documents were marked as Exhibits-A1 to A41 and Exhibit-B1. The District Commission finally, allowed in-part and passed an award directing the opposite parties to pay Rs.1,00,000/- towards compensation for deficiency in service and medical negligence and also to pay Rs.5000/- as costs to the complainant.
4. Aggrieved with the above order the complainant preferred the appeal to enhance the compensation...F.A.No.52/2017
5. And the opposite parties preferred the appeal to set aside the above finding of medical negligence and award of Rs.1,00,000/- .... inF.A.No.11/2017
6. The learned counsel for the appellants/opposite parties in the appeal grounds as well as in their arguments submitted that the District Commission order is erroneous and held the opposite parties/doctors committed medical negligence. In fact after performing the surgery the complainant vision become better and he obtained a certificate after 7 years from the date of surgery and the District Commission wrongly relied upon Ex.A13 and found the above blindness was caused 6 by the surgery performed by the doctors. It is further submitted, infact from the year 2005 when the surgery took place the complainant able to work till 2012, and only in the year 2013 he was relieved from his official works as per Ex.40. So the learned counsel argued that the District Commission wrongly concluded when the cataract was not found in the Aravind Eye hospital then how the opposite party performed the surgery for cataract and doubted the procedures. Infact the cataract can occur even in a single day. In case of injury in progress over a period of few months. So the finding of the District Commission is erroneous and liable to be set aside.
7. The learned counsel for the opposite parties/doctors further submitted, the Doctor's herein followed a procedure acceptable to the Medical Profession and they cannot be held liable for any negligence and there was no expert opinion was obtained regarding medical negligence as per Judgement of the Apex Court in, F.D' Souza .Vs.Mohd.Ishfag, reported in Grand Jurix 2009 (SC2) - GJX 01392 SC. The failure to obtain the expert opinion is also a ground to set aside the order of the District Commission. Hence he requested this Commission to set aside the award and to dismiss the complaint.
8. On the other hand the complainant preferred the appeal for enhancement of the above award amount and the learned counsel in his arguments would submit that, the complainant loss both of his eyes, loss of his future prosperity. The District Commission having found the opposite parties committed medical negligence, failed to award a reasonable compensation. Hence they prayed to enhance the compensation amount from Rs.1,00,000/- to Rs.4,00,000/-. 7
9. This commission deeply considered both sides submissions, and perused the records. Now the point for consideration is: Whether the order of the District Commission is sustainable in law, or not?
10. Discussions on the point: It is the admitted case that the complainant suffered from Retinitis Pigmentosa which is a group of genetic disorders that affect the retina's ability to respond to light. This inherited disease causes a slow loss of vision, beginning with decreased night vision and loss of peripheral (side) vision. So the complainant initially approached the Aravind Eye Hospital in the year 2004. The opposite parties/doctors gave a report on 24.11.2004 which is marked as Ex.A13. In Ex.A13 near vision in the right eye shown as 1.5 and the doctor also not mentioned any cataract formation in the eyes. At the time the complainant had 70% to 80% of vision.
11. It is the case of the opposite parties that in the year 2005 the complainant approached them for treatment to get better vision. At the time the opposite parties/doctors found cataract formation and it is their further case that only after removal of contract layer the Retinitis Pigmentosa can be assessed. It is the case of the opposite parties/doctors that they did not feel any surgery would bring back his vision. Inspite of that they performed the surgery as the complainant not satisfied with the treatment of Aravind Eye Hospital approached them and he alone insisted to perform such surgery.
12. It is their case the complainant approached them with his daughter on 05.10.2005 and during that visit and his previous visit they have explained the risk factors including failure of expected result. But the complainant agreed for the same so they performed the surgery. So, it is their specific case that initially they advised 8 the complainant that the surgery is not the best option but because of the persistent requests they agreed to perform the surgery and treated the complainant. In other words the doctor was at the opinion that any correctional surgery would be futile and no proper treatment for the complainant's ailment ofRetinitisPigmentosa.and no progress in vision can be obtained. If the Commission took the above version of the opposite parties as a whole, a true one, even then, the performance of cataract surgery done by the opposite parties/doctors against their own opinion, amounts to negligence .In Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and another (AIR 1969 SC 128) Honble. The Apex Court held that the duties which a doctor owes to his patient are clear. 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 him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient.
13. But in this case the doctor himself impliedly admitted that he failed in discharging the duty of care in deciding whether to undertake the case as well as the duty of care in deciding what the treatment to be given. When his own opinion is against doing cataract surgery but against his own finding he performed the same amounts to a clear negligence on his part. Moreover a study revealed as patients with only cataract and no retinal degenerative diseases are at risk for phototoxic retinal damage during surgery, patients with RP appear to be at greater risk. In such 9 circumstances preferring a surgery is not a normal course to be adopted. Sequal to the above discussions the following factors are emerged
(i) The complainant has Retinitis Pigmentosa and it will cause slow loss of vision.
(ii) There is no prescribed and accepted treatment evaluated to treat the same sofar.
(iii) In Ex.A13 Aravind Eya Hospital did not find any cataract in the complainant's eyes.
(iv) The opposite parties alleged the complainant suffered from cataract and they operated.
(iv) To prove this fact no scan report or eye test report produced by them except Ex.B1 a patient's card. The evaluation report and surgery report were not filed by the opposite parties/doctors.
14. So there is no proof filed before the District commission and this Commission that the complainant suffered from cataract. Failure to keep medical records is also a deficiency in service on the part of the opposite parties/doctors. Even forgetting the allegations of the complainant that after surgery he lost his vision, the opposite parties/doctors committed negligence in not keeping the medical records to substantiate their case. No Discharge Summary given or marked. In this case . What kind of surgery was performed, and who performed the surgery, and who assisted the surgery, and who was the anesthetist were not at all pleaded before the 10 Commission. So this Commission find this failure itself amounted to medical negligence on the part of the opposite parties/doctor.
15. The Hon'ble National Consumer Disputes Redressal Commission in its Judgment Dr.K.Vasanthi & Anr. .Vs. Chalasani Satyanarayana on 9 January, 2023 has held.
Further, I can't ignore the non-maintenance of vital medical record by the OPs. It was the primary duty of treating doctor to maintain proper treatment record including anesthesia, Operative notes , the medication, details of recovery from anesthesia etc. It should be borne in mind that, though I & D was a minor surgical procedure, OP-1 performed it under General Anesthesia and post operatively the patient was in ICU for 6 hours. Proper documentation will help to prove the doctor's duty of care and to defend certain unavoidable and unforeseen complications. Therefore, the Petitioners (OP-1 & 2) are held liable for the deficiency in services
17. Medical records not only serve as necessary documents for apt management of a patient, they are also legal documents. These records contain useful evidence for diverse litigations including personal injury cases, criminal cases, workers' compensation, disability determinations, and medical negligence claims. It should be borne in mind that "Good Record is Good Defense" Poor Record is Poor Defense" and "No record is No Defense." Thus, accurate and complete medical documentation is vital for appropriate and efficient patient care".
11So non maintaining of records is also one of the deficiency or negligence committed by the opposite parties.
16. The opposite parties/doctors alleged that the initially that don't want to perform surgery and they felt such surgery own opinion the complainant in getting better vision. It is their case that they explained all those factors to the complainant. But no such informed consent produced before this Commission. When informed consent was not proved and not produced then it also amounted to another medical negligence on the part of the opposite parties/doctor. Of course the surgery was performed in the year 2005. The Hon'ble Supreme Court of India in Samira Kohli .Vs. Dr.Prabha Manchanda & Anr clearly spelt What is meant by consent? The term 'informed consent' is often used, but there is no such concept in English law. The consent must be real :
that is to say, the patient must have been given sufficient information for her to understand the nature of the operation, its likely effects, and any complications which may arise and which the surgeon in the exercise of his duty to the patient considers she should be made aware of; only then can she reach a proper decision. But the surgeon need not warn the patient of remote risks, any more than an anaesthetist need warn the patient that a certain small number of those anaesthetized will suffer cardiac arrest or never recover consciousness. Only where there is a recognized risk, rather than a rare complication, is the surgeon under an obligation to warn the patient of that risk. He is not under a duty to warn the patient of the possible results of hypothetical negligent surgery. The above judgement declared what is consent and how it should be obtained by the doctors. The above findings were not only prospective in nature but 12 retroactive in nature. That means even before the Judgement if any doctor failed in obtaining consent they will be also held for medical negligence. The Apex Court held that it is not mandatory in every case to obtain medical expert evidence in J.J.Merchantandothers-Vs-ShrinathChaturvedi,2002(CTJ757SC(C)P). So in every respect this Commission found the order and award of the District Commission is valid and there is no necessity to interfere with those findings. So the contention of the opposite parties that expert opinion not obtained and it goes to the root of the finding is rejected
17. As far as the question of enhancement of compensation is concerned the complainant obtained blindness certificate after seven years from the date of surgery. He though proved loss of vision, he failed to prove that it was due to the performance of the surgery. No specific allegations or complaint about the procedure adopted by the opposite parties and which point of time the parties committed deficiency is not specifically pleaded. The complainant did not question the skill and qualification of the doctor. So the complainant is not entitled for any higher compensation than awarded by the District Commission. As such both the appeals are liable to be dismissed. Hence the order of the District Commission is hereby confirmed and the appeal is dismissed without cost and answered the point accordingly.
18. In the result, F.A.No.52/2017: (The appeal filed by the appellant/complainant).
1. The appeal is dismissed.
2. The order passed by the District Commission, Madurai, in C.C.No.285/2007, dated 29.11.2016, is hereby confirmed. 13
3. There is no order as to costs in this appeal.
19. In the result, F.A.No.11/2017: (The appeal filed by the appellants-1&/opposite Parties- 1&2).
1. The appeal is dismissed.
2. The order passed by the District Commission, Madurai, in C.C.No.285/2007, dated 29.11.2016, is hereby confirmed.
3. There is no order as to costs in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 31st day of May 2024.
Sd/-xxxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
14Corrected 15