State Consumer Disputes Redressal Commission
Jaswinder Singh vs S.G.L. Charitable Hospital & Ors. on 27 September, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.11 of 2007.
Date of Institution: 26.03.2007.
Date of Decision: 27.09.2011.
Jaswinder Singh S/o Charan Singh, Village Bodal Kotly, Post Office Nangal
Khunga, District Hoshiarpur.
.....Complainant.
Versus
1. S.G.L. Charitable Hospital, Managed by Baba Kashmira Singh Jan
Sewa Trust, Garah Road, Jalandhar, through its Chairman Baba
Kashmira Singh.
2. Dr. Hardial Singh Ghuman, S.G.L. Charitable Hospital, Garah Road,
Jalandhar.
Now at 76, Gurjaipal Nagar, Garaha Road, near Cool Road, Jalandhar
City.
3. Dr. Balbir Singh, S.G.L. Charitable Hospital, Garah Road, Jalandhar.
4. Dr. Harprit Singh, S.G.L. Charitable Hospital, Garah Road, Jalandhar.
5. Oriental Insurance Company, Branch Office, opposite Nehru Garden,
Jalandhar through its Branch Manager.
....Opposite parties.
Complaint U/s 17 of the Consumer
Protection Act.
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Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the complainant : Sh. G.K. Saini, Advocate.
For opposite party no.1 : Sh. Gurvinder Singh, Advocate.
For opposite parties no.2&3: Sh. Manvinder Singh, Advocate for
Sh. Amit Rawat, Advocate.
For opposite party no.4 : Sh.Ashutosh Hoshiarpuria, Advocate
For opposite party no.5 : Sh. Rahul Sharma, Advocate for
Sh. Ashwani Talwar, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Sh. Jaswinder Singh, complainant has filed this complaint u/s 17 of the Consumer Protection Act, 1986 (hereinafter called as "the Act"). Consumer Complaint No.11 of 2007 2
2. Facts in brief are that in the month of January, 2006, the complainant started feeling pain in his left leg and it became severe. He got examined himself from 2-3 doctors, but his condition did not improve. Due to severity and persistence of pain, three toes of the complainant became almost motionless. In the month of March, 2006, complainant contacted and visited opposite party no.2 for the said problem at S.G.L. Hospital i.e. opposite party no.1, who recommended some tests and after the receipt of test reports, an appointment was fixed with opposite party no.2 at S.G.L. Hospital on 22.03.2006 and he was diagnosed to be suffering from severe problem of disc and was advised surgery immediately, as there was no other medical option available. The said doctor further told that the delay in operation would cause permanent damage to the toes and paralysis to the whole leg.
3. The complainant was assured about the competence of the doctor and that the hospital was fully equipped to do the necessary and the complainant on the same day, got himself admitted and paid a sum of Rs.1500/- to the hospital as advance. After re-examining, opposite party no.2 told that the surgery will be performed on the next day, as some more tests were to be carried out and the preparations were to be made for the operation.
4. On 22.03.2006, complainant was operated and after the operation, he was shifted to the ward. On 24.03.2006 in the evening, complainant felt strange sensation twice or thrice originating from the operation site and moving upwards to the body and also started feeling pain in the back. Opposite parties no.2 & 3 visited late in the evening and told the complainant that there was nothing to worry.
5. On 25.03.2006, the sensation became more frequent and no doctor visited immediately and opposite party no.3 visited at 9-9.30 a.m. in routine and found that the complainant was having fever and he removed the pipes and started a drip when the complainant complained of pain in the Consumer Complaint No.11 of 2007 3 back, heaviness on the right side of the face and prolonged sensation running through the body. Opposite party no.2 visited the complainant at about 10.30 a.m. and told that the sensation might be because of the pipes which have been removed and he will be feeling normal. Opposite party no.2 at that time, even after 15-16 hours of the first sign of complication, never thought it proper to further investigate and to pin-point the reasons behind it. After 3-4 hours, complainant started feeling uneasiness due to pain in the back and heaviness in right side of the face and the matter was reported to the Duty Nurse, but neither any doctor was called nor any medicine was given and the normal post operative complication continued.
6. In evening, water like discharge started flowing from the right eye and the feeling of heaviness on the right side of the face of the complainant further increased, whereas the left eye remained absolutely normal. The matter was reported to the Attending Nurse at about 6.30 p.m. and on seeing the complainant, she told that there was no need of any medication and he will be alright by the next morning after having complete rest. She was asked to consult the doctor, but she replied that she had already consulted the doctor. Soon thereafter, complainant started feeling slight pain in the right eye along with heaviness on the right side of the face and the Duty Nurse told that it was nothing, but psychological. At 9.30 p.m., pain increased in the eye and the Duty Nurse was asked to call opposite party no.2, who told that the surgeon was not available. On asking for some medicine for pain, she told that she cannot give any medicine or injection without consulting the surgeon, who was not available. She also told that there was no other doctor available and the complainant has to wait till morning. At about 10.30/11.00 p.m., pain became unbearable and the Duty Nurse after consulting somebody, came after half an hour and gave two injections, but no positive effect was made and the discharge continued with pain from the eye. After about two hours, the eyesight of the effected eye started deteriorating and the complainant had a blurred view and the Duty Consumer Complaint No.11 of 2007 4 Nurse was informed, who tried to contact the doctor on phone, but there was no response. Soon, the eye-ball started swelling with increasing pain and the right side of the face became almost feeling-less and the Duty Nurse again tried to contact the doctor, but failed.
7. Due to increased swelling, eye-ball started coming out of the eye, but no medical aid was available and the complainant begged the Duty Nurse to discharge him, but she refused. Despite the presence of initial signs of complications on 24.03.2006 evening, complainant was attended by opposite parties no.2 & 3 only once on 25.03.2006 in the morning and that was the most crucial time for taking extra care to find out the cause and to give specialized treatment necessary in such situations in order to reverse the complication and to save the patient from further damage/loss/injury.
8. Opposite party no.3 visited the complainant at about 4.00 a.m. on 26.03.2006 and at that time, the complainant was already in semi conscious state. The swelling was so heavy that the eye-ball was coming out and it looked that it may burst any time and he was unable to see. Opposite party no.3 gave one or two injections, some eye drops and medicines. Opposite party no.3 did not give any satisfactory reply to opposite party no.2, but he told that as the problem is in the eye, he will send opposite party no.4 in order to give specialized treatment and ruled out the discharge of the complainant from the hospital. The complainant remained totally unattended for almost 18 hours from 10.30 on 25.03.2006 till 4.00 a.m. on 26.03.2006 and developed very serious complication due to negligence, non-attendance, insufficient and improper medical care on the part of the opposite parties.
9. Opposite party no.4 visited the complainant at 9.30 a.m. and after examining, he told that something unusual and unexpected has happened after the surgery which was rare. He gave some medicines including eye drops and injections and told that the swelling will go within two hours and then further testing will be done. After two hours also, the swelling remained uncontrolled and opposite party no.4 was contacted, but he did not Consumer Complaint No.11 of 2007 5 turn up. When he visited, he showed his inability to help and suggested the complainant to take discharge and to have some better treatment. A request was made around 2.00 p.m. for an immediate discharge, but the hospital authorities took three to four hours for the same and he was discharged in the evening on 26.03.2006. The complainant was shocked to know that opposite party no.2 has left for abroad and for that reason, he never re-visited after 25.03.2006 and no doctor was ready to attend the patient. On coming to know about the complication on 24.03.2006 in the evening itself, the operating doctor did not take it seriously and there was no other orthopedic surgeon in the hospital.
10. The complainant was immediately taken to Duggal Eye and Skin Care Hospital, Jalandhar, where eye was examined and some tests were conducted and doctors concluded that there are remote chances of saving the eye, as very serious damage had already been caused due to excessive swelling for a long time, coupled with improper and insufficient medical care.
11. Thereafter, the complainant was taken to Thind Eye Hospital, Jalandhar on 27.03.2006 and after examining, the doctor opined that it was impossible to save the eye, but the complainant may take last chance at Sohan Singh Eye Hospital, Amritsar, where super specialized facility is available. The complainant was then taken to Sohan Singh Eye Hospital, Amritsar on 28.03.2006 and after examining, the doctor concluded that the eye had been completely damaged and question of saving the same does not arise. The doctor further opined that if the effected eye is not removed immediately, it may result in the total loss of vision in other eye also, because optic nerve behind the eyes is the same and the right eye of the complainant was removed on 29.03.2006 and he was discharged.
12. After few days, opposite party no.2 returned and he was informed that the back problem for which spine/disc surgery was performed, has not fully eradicated, but opposite party no.2 told that it will take at least Consumer Complaint No.11 of 2007 6 one or two months to get complete relief and for that continuous medication/ treatment was needed. Opposite party no.2 tried to shift the responsibility upon others, stating that the eye has been unnecessarily removed and the complainant was left with no other alternative except to continue the treatment of opposite party no.2. After healing of the surgical wound in the eye, the complainant got fixed a duplicate eye on 18.05.2006 from Premier Contact Lens Centre, Aligarh.
13. The complainant continued taking treatment from opposite party no.3 for three months, but there was no improvement and the complainant discontinued the treatment and started further treatment from K.G.M. Hospital from 29.06.2006 onwards.
14. The complainant in the month of October demanded from opposite party no.1, complete patient file along with all investigations/ examination reports, but the same were denied on the ground that a written request was not given. The complainant went on 29.10.2006 with a written application, but he was refused. The complainant sent the same through UPC as well as registered post on 31.10.2006, but the same was not supplied in order to harass the complainant and the complainant sent a legal notice dated 20.11.2006 and in response to the said legal notice, opposite party no.1 sent laboratory report dated 22.03.2006, clinical history/examination, undated consent form and final payment slip dated 26.03.2006.
15. The complainant was about 32 years old when the surgery was performed and he was working as head constable in the Punjab Police and was recruited in sports quota in February, 1995. He achieved many distinctions as a sports person, but due to gross and gave negligence of the opposite parties, the complainant suffered irreparable loss and injury, especially opposite party no.2 being the operating doctor, who did not investigate further to take remedial measures. In the absence of opposite party no.2, other opposite parties failed to appropriate/extra treatment required in such cases, resulting in complete damage to the eye and they Consumer Complaint No.11 of 2007 7 also concealed the fact that opposite party no.2 was not even locally available. The complainant claimed the following amounts:-
i) compensation on account of defective surgery =Rs.7.00 lacs.
ii) compensation for cutting short his sports career =Rs.3.00 lacs.
iii) compensation for total damage to the eye and total =Rs.10.00 lacs-
loss of vision
iv) compensation on account of physical pain, =Rs.7.00 lacs mental agony and torture
v) expenses incurred including surgery/ies, tests, =Rs.1.00 lac treatment and other misc. expenses
vi) future re-occurring medical expenses due to =Rs.1.00 lac failure of disc surgery and
vii) litigation expenses Rs.10,000/- .
Total Rs.29,10,000/-
and prayed that the same be awarded along with interest.
16. In the written statement filed on behalf of opposite party no.1, preliminary objections were raised that the complaint is not maintainable against the answering opposite party, as the answering opposite party is a charitable hospital, wherein expensive medical facilities are provided to common man at low rates and as such, it does not fall under the Act. The complainant has not approached this Commission with clean hands and has concealed material facts.
17. True facts are that the complainant before coming to the answering opposite party, was already under the personal treatment of Dr. H.S. Ghuman, opposite party no.2, who apart from working as Consultant Surgeon with SGL Charitable Hospital, is also running his own private hospital under the name and style of Spine & Ortho Care, 76, Gurjaipal Nagar, Garha Road, near Cool Road, Jalandhar. Firstly, complainant consulted opposite party no.2 at his hospital on 10.03.2006, who issued prescription slip dated 10.03.2006 and prescribed certain medicines. This fact is corroborated from the report dated 22.03.2006 of Minni Clinical Laboratory, Munish Physiotherapy Centre, Shanker Garden Colony, New Market, Basant Consumer Complaint No.11 of 2007 8 Vihar Road, Jalandhar City, from where the complainant got done various tests prescribed by Dr. H.S. Ghuman from his private hospital and no such tests were referred by opposite party no.1. Perusal of prescription slip dated 10.03.2006 issued by opposite party no.2 further shows that the patient was referred to him by one Dr. Gurmail Singh of City Hospital, Tanda Urmar (Hoshiarpur) and next date of appointment was fixed as 18.03.2006. The complainant did not get himself admitted from 10.03.2006 to 22.03.2006, though it was so mentioned in the prescription notes dated 10.03.2006 by opposite party no.2 and the complainant himself delayed his medical treatment for which, none of the opposite parties could be held liable.
18. The opposite party no.1-hospital is fully equipped with State-of- the-art pathological laboratory which at the relevant time was under Dr. Sangeeta Chhura, MD, Pathology and 11 laboratory technicians were on rolls of the laboratory of the answering opposite party. The answering opposite party also entered into an agreement with renowned laboratories i.e. Ranbaxy Bombay and Sardana Jalandhar for special type of tests of its patients at lower rates than the prevalent market rates and the tests are referred by the answering opposite party itself and not by any individual doctors working at SGL Hospital.
19. The X-ray Spine and MRI scan were not conducted at the hospital of the answering opposite party, nor such tests are part of records of the answering opposite party-hospital. Dr. H.S. Ghuman, opposite party no.2 either conducted operation of the patient without such tests or got such tests conducted from outside laboratories. The complainant has concealed the private treatment and such tests referred by Dr.H.S. Ghuman.
20. Dr. H.S. Ghuman worked with opposite party no.1 as a Consultant Orthopedic Surgeon uptil September, 2006. The services of the answering opposite party were utilized for only operation purposes by opposite party no.2 and only a nominal amount of Rs.11,665/- was charged from the complainant as indoor treatment which includes fees-cum-charges, Consumer Complaint No.11 of 2007 9 room rent etc. Out of operation charges of Rs.7200/-, a sum of Rs.6500/- was paid to opposite party no.2 as professional charges. The complainant and his attendant were also provided free food by the answering opposite party as a part of charitable activities.
21. The complainant feeling pain in his eye and liver on 26.03.2006, sought voluntary discharge on the same day from the SGL Hopsital i.e. opposite party no.1 and got his eye problem treated from a number of other hospitals namely Duggal Eye and Skin Care Hospital, Thind Eye Hospital, Jalandhar, Sohan Singh Eye Hospital, Amritsar, KGM Hospital, Premier Contact Lab. Centre, Aligarh etc. mostly as outdoor patient, but none of the above hospitals has been made party in the complaint for the reasons best known to him. At SGL Charitable Hospital, the complainant was treated by Dr. Harpreet Singh, opposite party no.4.
22. The complainant again approached the SGL Charitable Hospital in the month of April, 2006 for follow up treatment of his spine problem and continued with the post-operative treatment, saying that he had got full confidence in the treatment received earlier from the SGL Charitable Hospital. The complaint has been filed just to extort money from the answering opposite party.
23. Spine operation performed by Dr. H.S. Ghuman has no connection with the eye injury. From the treatment notes made by Dr. Harpreet Singh, opposite party no.4 on 26.03.2006, it can be seen that the contents and quality of treatment was of a level which the patient might have received from any other eye-specialist. It is also not clear as to why the complainant did not get his eye completely treated from opposite party no.4, rather he got treatment from a number of other doctors in just 3-4 days. Injury to the eye also cannot be pinpointed on opposite party no.4 because the complainant himself took voluntary discharge on 26.03.2006 i.e. the very first day, he complained of pain in the eye and got himself treated as OPD patient at other hospitals.
Consumer Complaint No.11 of 2007 10
24. SGL Charitable Hospital is a renowned Super-Speciality hospital in the whole of the Punjab, having capacity of 250 beds and a number of mobile vans at its disposal. Apart from other charitable activities of social responsibility, mobile vans are also sent periodically to various clusters of villages in the interiors of rural area where medical facilities are scanty. It also organizes free medical camps for needy and the poor in the far-flung areas of the countryside and free service of doctors and medicines are provided to the poor and needy during such camps. One other Charitable Hospital under SGL Charitable Hospital having indoor capacity of 200 beds is also operational at village Subhanpur on Jalandhar-Amrtisar highway. Besides this, one nursing school is also running under the management of SGL Charitable Hospital.
25. It was further pleaded that another Ortho Specialist Dr. Davneet Pal Singh, M.S. Ortho was very much on duty at the SGL Charitable Hospital during the period, complainant was under indoor treatment, but the complainant did not contact him. Complaint is liable to be rejected on the ground that the complainant is a police constable and thus he can claim reimbursement of indoor treatment from his department. The complainant through his brother-in-law submitted a written consent for his operative procedure and he has filed the complaint on the basis of concocted story.
26. Under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995, no harm is going to be caused to the complainant in regard to his employment with the Punjab Police, being a Govt. Department.
27. Dr. H.S. Ghuman, opposite party no.2 and Dr. Balbir Singh, opposite party no.3 attended to the complainant on 24.03.2006 and 26.03.2006 and both the above doctors resigned on 16.08.2006 and now they are working jointly at private hospital, earlier run individually by opposite party no.1. The tests were got conducted by opposite party no.2 from the laboratory of his own choice before admission of the complainant in SGL Charitable Consumer Complaint No.11 of 2007 11 Hospital. There is no negligence or deficiency in service on the part of SGL Charitable Hospital, opposite party no.1 and for the negligence of opposite parties no.2 & 3, SGL Charitable Hospital cannot be held liable.
28. On merits, similar pleas as taken in preliminary objections were repeated again and again and denying entire allegations contained in the complaint, it was prayed that the complaint be dismissed with heavy costs.
29. In the reply filed on behalf of opposite parties no.2 & 3, preliminary objections were taken that the complaint is not maintainable in view of the fact that the claim has been lodged against a Charitable Hospital which does not fall within the jurisdiction of the Consumer Forum, in view of the law laid down by the Hon'ble Supreme Court in case "Indian Medical Association Vs V.P. Shantha", 1995 (III) CPJ-1 as well as 2000(II) CPJ-402. The complainant has arrayed opposite parties no.2 & 3 being doctors of the Charitable Hospital, but opposite party no.2 was only a 'visiting doctor' to the Charitable Hospital and not a permanent employee of the said hospital and he left the hospital in the month of September, 2006.
30. Opposite party no.2 is a qualified doctor i.e. M.S. Orthopaedics and has 9 years experience as a surgeon and has performed more than 700 spine surgeries during the said period and his rate of success is 100%. Opposite party is a specialist in Minimum Invasive Surgery especially spine surgery and at present, is a leading Orthopedic Surgeon at Jalandhar City, Punjab, and is having his own private hospital and operation theatre and he was selected in various national and international courses in advance techniques of surgery as detailed in the reply, including a course done concerning spine at Bagatelle Hospital and Polyclinic Bordeaux Nord, France.
31. Opposite party no.3-Dr. Balvir Singh is a MBBS doctor and was working as Medical Officer in opposite party no.1-hospital and he left the said SGL hospital on 15th September, 2006. The complainant has failed to produce any expert evidence or report of any expert to show that the loss of right side eye was either remotely related to the spine surgery performed by Consumer Complaint No.11 of 2007 12 opposite party no.2 in opposite party no.1-hospital. During the period when opposite parties no.2 & 3 were working with SGL Hospital, SGL Hospital was having all the departments like Orthopedic, Medicines, General Surgery, Eye, ENT, Nephrology, Pathology, Skin, Pediatrics and Bio-Chemistry. In the Orthopedic, opposite party no.2 and Dr. Davneetpal Singh as well as opposite party no.3 were working.
32. The complainant got himself checked up from opposite party no.2 on 11.03.2006 at his clinic and nothing was charged from him and after thorough examination, the patient was diagnosed to be suffering from slipped disc with severe pain, weakness and numbness in the legs, for which the complainant had already taken treatment from other doctors for the last three months, but did not get any relief. He was advised surgery and outcome of the surgery was also explained to him. The complainant did not get admitted himself on that day and came after 11 days i.e. on 22nd March, 2006 to opposite party no.1 for surgery but by that time, the problem had worsened.
33. On 23.03.2006, surgical operation was performed on the complainant successfully by doing Micro Disc Tomy which requires only one or two days of hospitalization and the complainant responded well to the surgery and post operational treatment and was found well till evening of 25.03.2006. Before surgery, opposite party no.2 specifically told the complainant that opposite party no.2 would be going on leave from evening of 25th March, 2006 onwards but the complainant did not wait for return of opposite party no.2 and agreed for surgery on 23rd March, 2006.
34. On 26.03.2006, there was sufficient staff to take care of the complainant and as per the file of the hospital, he was also seen by the concerned eye surgeon. Opposite party no.3 and eye surgeon had also visited and seen the complainant. Two medical officers of the hospital are round the clock on duty i.e. in ICU and Emergency and in case of emergency, only specialists are called during night. Opposite party no.3 was informed about some eye problem of the complainant and the complainant was shown Consumer Complaint No.11 of 2007 13 to Eye Surgeon on 26.03.2006 and there was no problem concerning orthopedic.
35. As per the clinical history of SGL Hospital, on 26.03.2006 at 9.30 a.m. opposite party no.4 an Eye Specialist was summoned who examined the complainant and wrote on the notes as "Periorbital Oedema, AC Shallow, corneal Oedema, Pupil dilated no reactive, digital TN". The complainant was advised medicines on 26.03.2006. When the Eye doctor re- visited for review of CT scan Orbit/intra-Vitreal Injection, it was written in record that the complainant was discharged on request. As per annexure-C- 39, from the date of operation till 25.03.2006, the complainant was not having any problem qua the eye or the post surgical operation performed on his back i.e. slipped disc. There is no such observation recorded in the discharge card annexure-C-18 regarding the ailment having occurred or related with Micro Disc Tomy. As per record of the hospital, at the relevant time the complainant never any complaint to the Duty Nurse.
36. Perusal of annexure-R2/3 (Colly) show that the damage to the eye is no where co-related or linked with the operation of Micro Disc Tomy performed by opposite party no.2 and thus no liability can be fastened on opposite parties no.2 and 3 and there is no deficiency or medical negligence on the part of opposite parties no.2 & 3 and the complainant is not entitled to any claim and he is not a consumer.
37. On merits, it was pleaded that after surgery, there was no sign of any complication nor there was any sensation as alleged on his body including the face. The medicines i.e. Becozyme C4 Tab and Distilled Water do not co-relate to the problem as alleged by the complainant. Similar pleas as taken in preliminary objections were repeated and all allegations of the complaint were denied and it was prayed that the complaint may be dismissed with costs.
38. Opposite party no.4 filed separate written reply, taking preliminary objections that the complaint is not maintainable, as the Consumer Complaint No.11 of 2007 14 complainant never hired the services of the answering opposite party and the complainant is not the consumer. The complainant never contacted answering opposite party to provide medical treatment nor the answering opposite party charged any penny for treatment from the complainant. Rather, the answering opposite party treated the patient free of cost and, as such, the answering opposite party cannot be held liable. No cause of action has arisen to the complainant to file the complaint against the answering opposite party and the answering opposite party has been unnecessarily dragged into litigation.
39. The complainant was never admitted for eye problem. The answering opposite party was to attend an eye camp as per schedule and on receiving reference that some patient is suffering form eye problem, answering opposite party rushed to the patient and best possible treatment was started on 26.03.2006 which was again to be reviewed after few hours depending upon the response of the patient to the treatment. Later on, the answering opposite party went to attend an eye camp organized by SGL Hospital at village Dhandowal, Shahkot on 26.03.2006 and on coming back from the camp, it was found that the complainant had taken willful discharge from the hospital. The complainant did not follow the treatment provided by the answering opposite party and thus there is no negligence can be attributed to opposite party no.4. After discharge, the complaint went to Dugal Hospital on the same day and thereafter, went to Thind Eye Hospital and thus himself delayed the treatment. He went to Amritsar after delay of three days and for that reason, condition of the eye ball had so much deteriorated that the eye had to be removed.
40. On merits, it was pleaded that opposite party no.4 prescribed the treatment i.e. Anti Glaucoma Medicines because the eye was very hard and due to unbearable tension, the patient was not able to see light, as such, first priority was to reduce the tension immediately. If intraocular pressure is very high, it stops blood supply of optic nerve (which takes light from eye to Consumer Complaint No.11 of 2007 15 brain) and that can cause permanent damage to the optic nerve and, as such, opposite party no.4 gave Intravenous Mannitol 350CC and Local Anti Glaucoma drops in order to reduce tension immediately. Opposite party no.4 further prescribed Intravenous Broad Spectrum Antibiotics because after surgery, the patient was already on latest generation higher end Broad- spectrum Antibiotics and also added more antibiotic intravenous, to cover infection. Antibiotic Ciprofloxacin prescribed by opposite party no.4 has high permeability into the eye. Opposite party no.4 also prescribed certain other medicines to reduce swelling of tissue. There is no negligence on the part of opposite party no.4 and he cannot be held liable in any manner. Similar other pleas were repeated and entire allegations of the complaint were denied and it was prayed that the complaint be dismissed against opposite party no.4.
41. In the written statement filed on behalf of opposite party no.5- Insurance Company, it was submitted that opposite party no.2 Dr. Hardial Singh Ghuman was insured with opposite party no.5 under Professional Indemnity Policy for the period 16.10.2005 to 17.10.2006 for Rs.20,00,000/- and opposite party no.5 insurance company is liable to reimburse and indemnity respondent no.2 only to the extent of Rs.20,00,000/- in the event of any liability imputed on it, subject to the terms and conditions and exclusions of the policy and beyond that, there is no liability of the company.
42. Rejoinders to the written statements filed on behalf of the opposite parties, were filed in which assertions of the complaint were repeated and that of the written statements were denied.
43. Parties filed affidavits and documents in support of their respective versions.
44. We have heard the learned counsel for the parties and have thoroughly examined the entire documents and other material placed on file as well as perused the written arguments filed on behalf of the complainant and opposite parties no.1 to 4.
Consumer Complaint No.11 of 2007 16
45. Admittedly, the spine surgery was conducted in the present case at opposite party no.1-hospital by opposite party no.2 Dr. Hardial Singh Ghuman on 22.03.2006 and immediately thereafter, the complainant on 24.03.2006 itself complained of feeling strange sensation originating from the operation site and moving upward to the body and also feeling pain in the back. This sensation became more frequent and opposite party no.2 assured the complainant that after removing the pipes, he will be feeling normal, but the situation did not improve and when the condition deteriorated and swelling started of the eye-ball, despite the complaint to the Duty Nurse, none attended nor took any care. No effort was made to find out the reasons for the swelling in the eye-ball of the right eye and ultimately on 26.03.2002, Dr. Harprit Singh, opposite party no.4 examined the complainant and gave some medicines and injections and told that the swelling will go within 2-3 hours, but no improvement was made and despite the request of the complainant to discharge immediately at around 2.00 p.m., he was discharged in the evening on 26.03.2006 and thereafter, he was taken to Duggal Eye & Skin Care Hospital, Jalandhar, Thind Eye Hospital, Jalandhar and lastly to Sohan Singh Eye Hospital, Amritsar on 28.03.2006 and it was concluded by the doctors that the eye had been completely damaged and it cannot be saved, rather the affected eye has to be removed immediately, otherwise, total loss of vision can be caused to the other eye also.
46. The plea of the opposite parties is that the spine surgery was conducted by the competent doctor and there was no complaint of the surgery and the spine surgery has no nexus/link with the eye and the loss of right eye cannot be attributed in any manner to the spine surgery conducted by opposite party no.2, who is a super specialist and has conducted large number of successful surgeries.
47. Very interesting question has arisen in this case that is whether spine surgery has any link with the eye/loss of eyesight or not? Consumer Complaint No.11 of 2007 17
48. Both the parties have relied upon the medical literature and as per the Campbell's Operative Orthopaedics, Complications of Open Disc Excision are as follows:-
i) Cauda equine syndrome 0.2
ii) Thrombophlebitis 1.0
iii) Pulmonary embolism 0.4
iv) Wound infection 2.2
v) Pyogenic spondylitis 0.07
vi) Postoperative discitis 2.0(1122 patients)
vii) Dural tears 1.6
viii) Nerve root injury 0.5
ix) Cerebrospinal fluid fistula *
x) Laceration of abdominal vessels *
xi) Injury to abdominal viscera *
49. Opposite parties have also relied upon the Stephen J. Ryan MD Fourth Edition Volume Three 'Surgical Retina', wherein under the head 'Endogenous Endophthalmitis', it is explained as under:-
"Endogenous Endophthalmitis accounts for 5% to 7% of cases in large mixed series of endophthalmitis, although it can occur in cases in otherwise healthy patients, mostly occur in patients with systematic disease, including chronic immune compromising illness such as Diabetes mellitus or renal therapy, immunosuppressive disease therapy, iv drug use, or Systematic Septicemia. Patients may present with mild symptoms of decreased vision, redness, pain and photophobia. Initial diagnosis is not made at the first presentation in 50% of patients. Bilaterality is common. A search for a systematic focus of infection in indicated when Endogenous Endophthalmitis is suspected, blood cultures are frequently positive. Assistance of internist or infectious disease specialist is often sought due to systematic implication of the condition. Fungal causes are found in 50% to 62% of cases with Candida spp. Being the most common isolate in some series and Aspergillus in others. In cases of bacterial cause, both Gram-positive and Gram-negative organisms are identified, with the proportions depending on the location of the Consumer Complaint No.11 of 2007 18 series. Intravitreal antimicrobial therapy is usually undertaken, and pars plana vitrectomy performed when clinic circumstances are thought to be warrant. Visual outcomes are often poor".
50. On the basis of above literature, the counsel for the opposite parties has contended that there is no nexus/link of spine surgery with the loss of eye or swelling of the eye and the usual complications above mentioned do not link it with the eye problem and the disease Endogenous Endophthalmitis is not, at all, linked with spine surgery and it can be for various reasons as described above.
51. The complainant has relied upon the latest medical literature 'Visual Loss in One Eye after Spinal Surgery', published in June, 2006 and under head 'Conclusions", it is mentioned as under:-
" A prolonged prone position during spinal surgery can cause external compression of the eye, causing serious and irreversible injury to the orbital structures. Therefore, if the patient shows postoperative signs of orbital swelling after spinal surgery the condition should be immediately evaluated and treated.
Sudden unilateral or bilateral visual loss occurring after general anesthesia has been reported and attributed to various causes including hemorrhagic shock, blood dyscrasia, hypertension, hypothermia, coagulopathic disorders, direct trauma, embolism, and prolonged compression of the eyes.
52. Another literature relied upon by the complainant is Campbell's Operative Orthopaedics Volume Two(Eleventh Edition) in which under head 'General Principles for Microdiscectomy', is mentioned as under:-
"Most disc surgery is performed with the patient under general endotracheal anesthesia, although local anesthesia has been used with minimal complications. Patient positioning varies with the operative technique and surgeon. To position the patient in a modified kneeling position, a specialized frame or custom frame is popular. Positioning the patient in this manner allows the abdomen to hang free, minimizing epidural venous dilation and bleeding (Fig.39-36). A headlamp allows the surgeon to direct light into the lateral recesses where a large proportion of the surgery may be required. The addition of loupe magnification also greatly improves visibility further". Consumer Complaint No.11 of 2007 19
53. The complainant also placed reliance on the "American Journal of Opthalomology" Volume-127, Issue 3rd March, 1999 in which, under head, 'Bilateral Posterior Ischemic Optic Neuropathy after Spinal Surgery' under sub-heads 'Results' and 'Conclusion', it is mentioned as follows:-
Results: After prone-position spinal surgery of 8 hours' duration, a 68-year-old woman was completely blind in both eyes. Moderate periobital edema and temporal conjunctival chemosis were present bilaterally. Ophthalmic examination disclosed normal-appearing optic nerve heads, except for bilateral nasal fullness related to bilateral optic nerve drusen, and no retinal edema. Immediate cerebral arteriography, magnetic resonance imaging, and electroretinography were normal. Visual-evoked response was not detectable, and 7 weeks later, sever bilateral optic nerve head pallor developed.
Conclusions: Severe selective hypoperfusion of the retrobulbar optic nerves may occur after spinal surgery. Pressure to the periobital region may be a contributing factor.
54. The other literature relied upon by the complainant is Deep Vein Thrombosis and Periobital Edema of One Eye in which under head 'Results: Cause of Deep Vein thrombosis or Periorbital edema of one eye', 36 causes are mentioned and one of the causes listed at serial no.35 is 'Surgical errors/complications".
55. Thus, from the above discussion and the latest medical literature, it is clear that there is nexus/link between the spine surgery and the periorbital edema and if the proper care and medical treatment is not given, there can be loss of eye-sight of one eye and the initial symptoms shown are 'swelling of the eye-ball' and from the very start when the complainant felt some sensation on 24.03.2006, the opposite parties should have taken care and being experts should have thought of the sensation and thereafter, the swelling of the eye-ball due to spine surgery, but they did not think of this fact Consumer Complaint No.11 of 2007 20 and as medical experts, they were supposed to know the latest literature and the remedies and had they taken the steps of finding out the reasons from the moment the complainant complained of sensation and then swelling, then the complainant should not have suffered the loss of complete one eye. That proves that there was lack of skill and competence including the negligence on the part of the opposite parties, particularly opposite parties no.2 to 4, who are the doctors and they were supposed to know the effect of spine surgery on the eye, but the stand of the opposite parties is that spine surgery has no nexus with the eye-sight or eye problem, which further establishes their lack of knowledge, skill and competence and for their negligence and deficiency in service, the complainant has to suffer the loss of one eye and had that not been removed in time, then as per the experts, there were chances of losing second eye also and the complainant could become complete blind. What more can by the negligence, deficiency on the part of opposite parties no.2 to
4.
56. Accordingly, the complaint filed by the complainant is allowed and opposite party no.2 is directed to pay Rs.5,00,000/- (Rupees Five Lacs) as compensation to the complainant and opposite parties no.3 & 4 are directed to pay Rs.1,00,000/- each (Rupees One Lac Each) as compensation to the complainant, in lumpsum against all the reliefs claimed by the complainant. Opposite party no.2 Dr. Hardial Singh Ghuman is insured with opposite party no.5-insurance company under Professional Indemnity Policy for the period 16.10.2005 to 17.10.2006 for Rs.20,00,000/- vide policy Ex.R5/1, as such, opposite parties no.2 and opposite party no.5 are liable to pay the above amount of Rs.5,00,000/- jointly and severally.
57. Compliance of the order be made within two months from the receipt of copy of the order.
58. Arguments in this complaint were heard on 14.09.2011 and the order was reserved. Now the same be communicated to the parties. Consumer Complaint No.11 of 2007 21
59. The complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member September 27, 2011.
(Gurmeet S)