State Consumer Disputes Redressal Commission
Suresh Kumar vs Sharma Eye Care & Hospital on 9 May, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
First Appeal No.550 of 2013
Date of institution : 14.05.2013
Reserved on : 24.04.2017
Date of decision : 09.05.2017
Suresh Kumar (deceased) through his LRs:-
1. Sheela Rani w/o Suresh Kumar;
2. Deepak Kumar son of Suresh Kumar;
Both residents of near Istri Satsang Bhawan, Ward No.15,
Maur Mandi, Tehsil Talwandi Sabo, District Patiala.
....Appellants/Complainants
Versus
Sharma Eye Care & Hospital, 20, Jagdish Ashram Marg, Patiala,
through Dr. Rajiv Sharma and Dr. Bela Sharma.
....Respondent/Opposite Party
First Appeal against the order dated
9.4.2013 of the District Consumer
Disputes Redressal Forum, Patiala.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member.
Present:-
For the appellant : Shri Mukand Gupta, Advocate. For the respondent : Shri F.S. Virk, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT "The eyes are the windows of the soul" is an expression that is often used to describe deep connection one feels when looking into another's eyes. These are also vital in how we view the world around us. These allow us to connect with our surroundings. The First Appeal No.550 of 2013 2 quote "keep your eyes on the stars, and your feet on the ground"
relates to vision.
2. The instant First Appeal has been preferred by unsuccessful complainant against the respondent-opposite party challenging the order dated 9.4.2013 passed by District Consumer Disputes Redressal Forum, Patiala (in short, "District Forum"), vide which the complaint filed by him for the issuance of following directions to the respondent-opposite party:-
i) to pay ₹5,00,000/- as compensation;
ii) to pay ₹1,00,000/- on account of expenses incurred on
operation/treatment which includes the amount charged by opposite party No.1 as well as on account of medicines, transportation etc. etc.;
iii) to pay ₹2,00,000/- which are expected to be incurred more on future operation/treatment & special diet and transportation charges;
iv) to pay ₹2,00,000/- on account of loss of enjoyment of life;
v) to pay ₹8,00,000/- on account of loss of income; and
vi) to pay ₹22,000/- as counsel's fee and ₹5,000/-, as litigation expenses.
was dismissed. However, Suresh Kumar, appellant/complainant, has died on 21.4.2015 during the pendency of the present appeal and his Legal Heirs have been brought on record in his place, vide order dated 1.3.2017.
First Appeal No.550 of 2013 3
3. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
4. Brief facts of the case are that the complainant was suffering from the eyesight problem and he approached opposite party- Hospital through one Makhan Singh on 17.11.2009. After examining the eyes, opposite party-Hospital advised surgery for improvement of vision. In pursuance of the assurance given by the opposite party-Hospital the complainant was admitted in the Hospital on 17.11.2009 and was administered medicine and injections. For this opposite party-Hospital charged ₹4,000/- and was ultimately discharged on 18.11.2009. He was advised to visit on 20.11.2009 for surgery of the right eye. On 20.11.2009 the complainant went to opposite party-Hospital and surgery was conducted on his right eye. The complainant was kept for one day as an indoor patient and thereafter was discharged on 21.11.2009. On the said date also ₹1,000/- was charged. The complainant used the medicine as suggested by opposite party-Hospital but did not find any improvement in the vision of his right eye. The complainant allegedly made complaints to opposite party-Hospital on telephone from Maur Mandi. Opposite party-Hospital suggested the complainant to use the medicines regularly and assured that the vision would certainly improve. The complainant again visited opposite party-Hospital on 8.12.2009 and told that there was a problem in the vision of left eye also. He was again admitted and the surgery was conducted on his left eye. The complainant was First Appeal No.550 of 2013 4 discharged from the Hospital on 10.12.2009. On that occasion another sum of ₹1,500/- was charged from him. The complainant again visited opposite party-Hospital on 22.12.2009 and a sum of ₹2,000/- was again charged from him for the said purpose. The complainant again visited opposite party-Hospital on 14.1.2010 and got his eyes checked by making the payment of ₹800/-. The complainant informed the Doctor that there was no improvement in the eyesight in-spite of the surgery of both the eyes. The complaint has been filed on the allegation that the opposite party-Hospital did not take care of the complainant and the surgery was not conducted after getting the proper tests done as a result of which the vision of both the eyes of the complainant started deteriorating. The complainant has become virtually disabled. It is further alleged in the complaint that the complainant has spent more than ₹1,00,000/- on medicines, special diet, transportation etc. and has also suffered in his business. The complainant has further alleged that he was earning ₹1,50,000/- per annum and the entire family of the complainant is dependent upon him. On the basis of these allegations the complainant filed the present complaint for claiming the reliefs, referred to above.
5. Upon notice opposite party-Hospital appeared and filed written statement. It was denied that the complainant approached the opposite party-Hospital along with one Makhan Singh. It was also denied that on 17.11.2009 the complainant was accompanied by Makhan Singh and the attendants; namely, Amandeep Singh First Appeal No.550 of 2013 5 and Karamjit Singh. It was also denied that on examination of the eyes of the complainant operation of the right eye was advised. It was admitted by opposite party-Hospital that it had been assured that there was likelihood of improvement of the vision of the eyes of the complainant. It was averred that on 17.11.2009 the complainant had visited opposite party-Hospital and as per the record, the complainant had informed the Doctor that he was a diabetic for the last 13 years. He had already been examined at PGI, Amritsar and by Dr. Balbir Singh at Patiala and had undergone investigation of O.C.T. (Optical Coherence Tomography), FFA (Fluroecsrin Fundus Angiography), Perimetrey, VER (Visually Evoked Response) and C.T. Scan of the head had already been done, a week back. There was a complaint of defective vision for the last two years, which was decreasing gradually. On examination, the vision of the complainant was observed 3 feet counting figure of right eye and 4 feet counting figure of left eye. There were diabetic retinopathy changes. Further FFA revealed significant macular edema of both eyes and was advised Intravitreal TRIAMCILONE Avastin (in short, "IVTA"). Due consent of the complainant was taken before performing the said procedure. The surgery of right eye was done on 17.11.2009. On the further visit made by the complainant on 20.11.2009 he underwent laser in his right eye. On the next visit of the complainant on 8.12.2009, he agreed only for subconjunetival injunction and not for intravitreal of the left eye and laser of the left eye was done. On examination, on 22.12.2009 second sitting of First Appeal No.550 of 2013 6 laser of right eye was also done and he was advised to come after one month. His vision improved from right eye 4 feet and left eye 3 feet to 6/60 both eyes and, as such, the procedure done by opposite party-Hospital was successful. It is further averred that on 14.1.2010 when the investigation was being done, the complainant suddenly became aggressive and asked opposite party-Hospital that he did not want to have further treatment. The vision of both the eyes had improved because of the treatment given by opposite party-Hospital and the complainant was advised to get review at PGI, Chandigarh and get his treatment completed to protect his eyes from diabetics, which finally led to blindness. The complainant was issued prescription slip but he has not produced the same intentionally. The other allegations were denied. It is also the averment that there is always a risk of complication regarding which the complainant was explained in advance. In fact, no complication took place in the case of the complainant. When the complainant was examined for the last time, he had a vision of 6/60. A prayer for dismissal of the complaint was made.
6. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, dismissed the complaint, vide impugned order. Hence, this appeal.
7. We have heard learned counsel for both the sides and perused the records.
First Appeal No.550 of 2013 7
8. It was vehemently argued by the learned counsel for the complainant that as per record produced by opposite party-Hospital the blood sugar of the complainant was 170 as against the normal (fasting range 70-100 and random range from 100-150). However, opposite party-Hospital knowing fully well that the complainant is a diabetic patient, did not control the sugar level before conducting the laser. It was the duty of opposite party-Hospital before conducting the surgery to ensure whether blood sugar and blood pressure of the complainant were under control or not. Moreover, opposite party-Hospital did not produce the relevant record as to from which Physician he got the latest status on blood sugar readings despite specific directions given by the District Forum. It was further argued that opposite party-Hospital conducted the laser of both the eyes one by one just within 20 days without waiting for a reasonable time and without first noticing that first (right) eye is cured or not and that opposite party-Hospital did not take a valid consent from the complainant before conducting the laser nor any complication or risk involved was disclosed. The alleged consent, if any, is without date and is not a valid consent. The same is only for conducting the laser of one eye and not for both eyes. It was further argued that it is not required to have expert evidence in all cases of medical negligence. He relied upon judgments of Hon'ble National Commission reported in I(2012) CPJ 26 (NC) (V.V. SATHAYE (DR.) v. HIMATLAL GIRDHARILAL SINGALA & ANR.), III(2012) CPJ 467 (NC) (JAWAHARLAL INSTITUTE OF First Appeal No.550 of 2013 8 POST-GRADUATE MEDICAL EDUCATION AND RESEARCH (JIPMER) & ANR. v. S. VARRERY SRINIVAS), judgment passed in Original Petition No.146 of 1998 decided on 2.1.2013 (Vinay Srivastava v. Dr. P.S. Hardia) and the judgment of Hon'ble Supreme Court reported in III(2010) CPJ 1 (SC) (V. KISHAN RAO v. NIKHIL SUPER SPECIALITY HOSPITAL & ANR.).
9. On the other hand, it was argued by the learned counsel for opposite party-Hospital that the Doctor of opposite party-Hospital a qualified Ophthalmologist having done MS from PGI and Retina Training at AIIMS. He has vast experience in the said profession. Best treatment was given to the complainant and the same was successful also. The complainant has not examined any medical expert to find out any fault in the treatment given to him regarding the disease from which he was suffering. It is well settled that onus to prove medical negligence lies on the complainant, which has to be discharged by leading cogent evidence and mere averment in the complaint cannot be said to be such evidence. Neither any document expert has been examined nor it has been alleged as to how opposite party-Hospital was negligent. It has also not been alleged or proved as to what precaution should have been taken which might not have been taken or what was the wrong in the line of treatment. There is not an iota of allegation or evidence on record that opposite party-Hospital deviated from the established line of treatment. It was further argued that the District Forum after carefully perusing the documents and the evidence on record has First Appeal No.550 of 2013 9 rightly passed the impugned order and there is no illegality or infirmity in the same. There is no merit in the present appeal and the same is liable to be dismissed with costs.
10. We have given thoughtful consideration to the contentions raised before us by the learned counsel for the parties.
11. In the light of the arguments raised by the Ld. Counsel for the opposite party-Hospital, it is to be seen, whether examination of expert is necessary in this case? This issue is no more res integra. The Hon'ble Supreme Court in V. Kishan Rao's case (supra) has elaborately examined this issue. The relevant paragraphs read as under:
"13. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the Members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory. First Appeal No.550 of 2013 10
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15. We do not think that in this case, expert evidence was necessary to prove medical negligence. xxxx xxxxx
37. In view of the aforesaid clear formulation of principles on the requirement of expert evidence only in complicated cases, and where in its discretion, the Consumer Fora feels it is required, the direction in paragraph 106, quoted above in D'souza (supra) for referring all cases of medical negligence to a competent doctor or committee of doctors specialized in the field is contrary to the principles laid down by larger Bench of this Court on this point. In D'souza (supra) the earlier larger Bench decision in Dr. J. J. Merchant (supra) has not been noticed.
38. Apart from being contrary to the aforesaid two judgments by larger Bench, the directions in paragraph 106 in D'souza (supra) is also contrary to the provisions of the said Act and the Rules which is the governing statute.
xxxx xxxxx xxxxx
54. This Court however makes it clear that before the Consumer Fora if any of the parties wants to adduce expert evidence, the Members of the Fora by applying their mind to the facts and circumstances of the case First Appeal No.550 of 2013 11 and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the Members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in First Appeal No.550 of 2013 12 many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.
55. For the reasons discussed above, this Court holds that it is not bound by the general direction given in paragraph 106 in D'souza (supra). This Court further holds that in the facts and circumstances of the case expert evidence is not required and District Forum rightly did not ask the appellant to adduce expert evidence. Both State Commission and the National Commission fell into an error by opining to the contrary. This Court is constrained to set aside the orders passed by the State Commission and the National Commission and restores the order passed by the District Forum. The respondent no.1 is directed to pay the appellant the amount granted in his favour by the District Forum within ten weeks from date."
In view of the law laid down in the case of V. Kishan Rao' case (supra) and settled proposition of law, it is not necessary to examine medical expert in every case of medical negligence. We do not think that in this case, expert evidence was necessary to prove medical negligence. The present complaint can be decided on the basis of evidence available on record of the District Forum.
12. Now, coming to the medical negligence. Admittedly the complainant was diabetic for the last 13 years and had earlier been examined at PGI, Chandigarh, at Amritsar and by Dr. Balbir Singh First Appeal No.550 of 2013 13 at Patiala. He had undergone investigation of Optical Coherence Tomography (in short, "O.C.T."), Fluroecsrin Fundus Angiography, (in short, "FFA"), Perimetrey, Visually Evoked Response (in short, "VER") and C.T. scan of the head and for the last two years his vision was decreasing gradually. On the day of examination vision of both eyes of the complainant was observed as 3 feet counting figure of right eye and 4 feet counting figure of left eye. In the medical history it is also recorded that there were diabetic retinopathy changes and FFA revealed Clinical Significant Macular Edema (in short, "CSME") of both eyes of the complainant and he was advised Intra Vitreal TRIAMCILONE Avastin (in short, IVTA"). Allegedly the consent of the complainant was taken for the said procedure in respect of right eye and the same was done on 17.11.2009. The complainant further made complaint on 20.11.2009 and he was subjected to laser in his right eye. Again on 8.12.2009 the complainant agreed only for subconjunetival injunction and not for intravitreal of the left eye and the laser of the left eye was done. On 22.12.2009 on the second sitting the laser of the right eye was also done and the complainant was advised to come after one month. It is alleged that eyesight of both the eyes was increased and the procedure was successful. It is also alleged that the complainant was aggressive on 14.1.2010. He was advised to visit PGI, Chandigarh, for review with a purpose to protect the eyes which may ultimately lead to blindness after the First Appeal No.550 of 2013 14 treatment was left incomplete. These facts were in the knowledge of the doctor and the medical staff of the opposite party-Hospital.
13. Admittedly no record has been produced by the opposite party-Hospital with regard to the tests, which the doctors and the medical staff of the opposite party-Hospital might have carried out before taking up the procedures upon the complainant. In-spite of the application moved by the complainant for production of the record before the District Forum, the opposite party-Hospital did not produce the same on the record. Meaning thereby the opposite party-Hospital concealed the material documents and it had not come to the District Forum with clean hands. An adverse inference for the same is to be drawn against the opposite party-Hospital.
14. The opposite party-Hospital itself produced on record the treatment chart in respect of the complainant as Ex.R-2 and a perusal of the same reveals that the complainant was having DM for the last 13 years and his Sugar level at that point of time was 170. However, opposite party No.1 knowing fully well that the complainant was a diabetic patient did not try to control the sugar level before conducting the laser. No proper care was taken by the doctor before going for treatment firstly of the right eye and thereafter without waiting for sufficient period, the opposite party started the treatment of the left eye and laser treatment of both the eyes was performed. It is common among private hospitals that they do not wait for sufficient period for providing treatment specifically in the present case the treatment for the right eye was First Appeal No.550 of 2013 15 commenced on 17.11.2009 and the treatment was done on 20.11.2009. Thereafter he again visited on 8.12.2009 with a problem in the vision of left eye also and Subconjunetival injunction was given and the complainant was admitted on 9.12.2009 and was discharged on 10.12.2009 for the treatment of left eye. The laser of both the eyes was done.
15. Diabetic Retinopathy and Diabetic Macular Edema/Clinical Significant Macular Edema are the leading causes of blindness. Ocular imaging is relevant and plays a significant role in the management of diabetic eye disease. Fluorescein angiography (FA) detects area of capillary nonperfusion as well as leakage from both microaneurysms and neovascularization. For this purpose ultra-widefield imaging should have been used to produce both colour fundus photographs and FAs. The pathologies that are detected in the periphery of the retina have the potential to change the grading of disease severity and may be of prognostic significance to disease progression. Studies have shown that peripheral ischemia may be related to the presence and severity of DME. However, the opposite party-Hospital relied upon the record of the previous hospitals. It does not appear that the opposite party-Hospital got conducted any tests before conducting the procedures upon the complainant. It is the categorical case of the complainant that the record of the other Hospitals, which was taken at the time of surgery by the opposite party-Hospital was not returned and even the record maintained by the opposite party- First Appeal No.550 of 2013 16 Hospital for the treatment of the complainant was not given to him. Even much of its own record has not been annexed by the opposite party-Hospital. It is a known fact that diabetic retinopathy i.e. DR and Diabetic Macular Edema (DME) are common categories of microvascular complications in the patients with diabetes and may have a sudden and debilitating impact on visual acuity (VA), eventually leading to blindness. In such a situation the doctor of opposite party-Hospital should have taken special care. It appears that the opposite party-Hospital has not carried out B-scan to find out the situation of the posterior part of the eyes. B-scan report and other reports have not been annexed on the record by the opposite party-Hospital nor have been detailed in the reply. B-scan is a must to find out the posterior condition of the eyes. The O.C.T. and B- scan are also required to be carried out after the procedures are done. It needs to be emphasized here that perhaps the opposite party-Hospital was not well equipped as no details have been given in the reply and the opposite party-Hospital had rather written in Ex.R-2 that the complainant should visit PGI, Chandigarh for review. The Medical Certificate Ex.C-9 issued by the Civil Surgeon, Bathinda, reveals that eyesight of right eye of the complainant is 1/60 and of left eye is 1/60 and the complainant has been held to be 75% disabled. Ex.C-10 to Ex.C-12 are the Certificates issued by the opposite party-Hospital in which complete details have not been mentioned. The opposite party-Hospital was required to produce First Appeal No.550 of 2013 17 the relevant record and for non-production of the same an adverse inference is to be drawn against the opposite party-Hospital.
16. The complainant has been able to show prima facie that the opposite party-Hospital was negligent in treatment of the complainant as it did not carry out pre-operative tests, which were necessary. Since the complainant at that time was a diabetic for more than 13 years and was on anti-diabetic drugs, the common tests such like blood sugar level, blood pressure, cholesterol, fundus etc. were must before going for procedure specifically in the case when the patient is a diabetic. In this regard, reference may be made to judgment of Hon'ble National Commission in "B.K. PANI (DR.) @ BINAY KUMAR PANI (DR.) v. SUNDRI DEVI" III(2011) CPJ 61 (NC) in which also the operation was done in haste without required post-operative diagnostic/pathological tests. The Hon'ble National Commission upheld the orders of the Fora below and directed the petitioner therein to pay compensation along with costs to the complainant.
17. In "DH Kumari and others versus Nizam Institute of Medical Sciences" I (2013) CPJ 520 (NC) it is held that the doctor was guilty of medical negligence, where the doctor did not follow the standard diagnostic protocol in conducting the surgery. Similarly, in "Deep Nursing Home versus Manmeet Singh Mattewal and others" III (2012) CPJ 154(NC) where standard diagnostic protocol was not followed, it was held to be a case of gross medical negligence in management of patient by the treating doctor. First Appeal No.550 of 2013 18
18. Reference may also be made to the judgment of Hon'ble National Commission in V.V. SATHAYE's case (supra) in which respondent/complainant therein underwent cataract surgery in right eye performed by the petitioner/doctor and complications occurred due to which complainant lost complete vision in right eye. District Forum awarded a compensation of Rs.2,00,000/- in a complaint as demanded by the complainant. The petitioner/doctor filed appeal before the State Commission and the same was dismissed. Thereafter the petitioner/doctor filed Revision Petition, which was also dismissed by the Hon'ble National Commission by holding that the petitioner/doctor was aware that the respondent/complainant had diabetes for 7 to 8 years prior to surgery and the said fact was also duly recorded in case history. However, no steps were taken to ensure that diabetes will remain under control during surgery. No diagnostic tests were conducted to ensure that respondent/complainant's diabetes was under control. It is further held that it is medically well established that it is for the eye surgeon to ensure before undertaking a cataract surgery on a patient that at least two important medical parameters of the patient; namely, the blood sugar and blood pressure are under control and that while it is a fact that a patient who has diabetes is to be treated by the physician, it is equally well established that it is for the eye surgeon to get the latest status on blood sugar reading and satisfy himself that it is within permissible limits before conducting the eye surgery. First Appeal No.550 of 2013 19 The facts of the present case are almost similar to the facts of the above case.
19. Reference may also be made to the judgment of Hon'ble National Commission passed in Vinay Srivastava's case (supra) in which case also the medical record was not produced on the record. It was held in para 23 as held:-
"23. This plea is mere palliative and does not delve deep enough to the roots of malady. The negligence on the part of OP stands established, for the following reasons. To top it all, it is strange that the medical record of the patient/complainant is not produced by the Doctor. This is the first case where a Doctor is unable to produce the medical record pertaining to the patient. He wants to get away with the specious plea that he had given the record to the patient/complainant. This version does not suffice. The Doctor has given a fragile excuse. The Doctor is supposed to maintain the record of all the three operations. By no stretch of imagination, it can be said that the medical prescriptions/record (photocopies) placed at pages 20 to 33, in Part-II, furnish/complete the whole record. The original record was not adduced. Original record would have gone a long way to illustrate the position more clearly. The suppression of the record by the Doctor itself speaks volumes of negligence on the part of the Doctor. The First Appeal No.550 of 2013 20 Doctor is supposed to preserve the record for a period of three years at least."
In the present case also no medical record with regard to the treatment given to the complainant for the procedures done on both his eyes has been placed on record. This act of the opposite party- Hospital amounts to deficiency in service and adoption of unfair trade practice which constitutes medical negligence.
20. It appears that even valid consent was not taken by opposite party-Hospital from the complainant. The alleged consent taken by the opposite party-Hospital is mentioned on the back of Ex.R-2 and a perusal of the same reveals that the contents of the consent have been made on a rubber stamp. There is no date on the same. There is no mention of what procedure was to be done upon the person of the complainant nor post-operative complications were mentioned. This consent is no consent in the eyes of law. Since no informed consent is there, therefore, this action of opposite party- Hospital is in violation of judgment of Hon'ble Supreme Court reported in (2008) 2 SCC 1 (Samira Kohli v. Dr. Prabha Manchanda) in which it has been held that consent in the context of a Doctor Patient relationship means the grant of permission by the Patient for an act to be carried out by the Doctor such as a Diagnostic, Surgical or Therapeutic procedure. What is relevant and of importance is the inviolable nature of the Patient's right in regard to his body and his right to decide whether he should undergo particular treatment or surgery or not. The nature of First Appeal No.550 of 2013 21 information is required to be furnished by a Doctor to secure a valid or real consent. In the present case no such information has been furnished in the document Ex.R-2 in which alleged consent is mentioned. Hence it is held that there is no informed consent in this case before conducting the surgery on the person of the complainant. This act of opposite party-Hospital also amounts to deficiency in service and medical negligence.
21. The Hon'ble Supreme Court in the case of "Nizam Institute of Medical Sciences versus Prashant S. Dhanauka and others"
II(2009) CPJ 61(SC) has held that in case of medical negligence, once an initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on the hospital or to the attending doctors and it is for the opposite party-hospital to satisfy the court that there was no lack of care or diligence.
22. In view of the discussion held above and keeping in view the ratio of the judgments referred to above, it is held that opposite party-Hospital was negligent in carrying out the procedures on both the eyes of the complainant and has, thus, committed medical negligence for which it is liable to pay compensation to the legal heirs of the complainant, who has since died. Therefore, the District Forum has committed an error in dismissing the complaint of the complainant and, as such, the impugned order passed by the District Forum is liable to be set aside.
First Appeal No.550 of 2013 22
23. Now coming to the quantum of compensation. It may be observe here that if one is deprived of the eyesight, then he cannot perform even the daily pursuits of his life and will have to depend upon others. The complainant was 51 years of age, who is stated to have died during the pendency of the present appeal, which is now being pursued by his legal heirs. Accordingly we award a compensation of Rs.2,00,000/- in lump sum to both the legal heirs of the complainant in equal shares.
24. In view of our above discussion, we partly allow this appeal and set aside the impugned order dated 9.4.2013 passed by the District Forum. The opposite party-Hospital is directed to pay a compensation of Rs.2,00,000/- in lump sum to both the legal heirs of the complainant in equal share and a sum of Rs.22,000/- as costs of litigation before the District Forum as well as before this Commission.
25. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER May 09, 2017.
Bansal