State Consumer Disputes Redressal Commission
Gagandeep Kaur vs Singla Eye Hospital on 15 June, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 109 of 2015
Date of institution : 11.05.2015
Date of reserve : 07.06.2017
Date of Decision: 15.06.2017
Gagandeep Kaur daughter of Sh. Jaspal Singh, resident of # 439-B,
College Road, Faridkot, District Faridkot.
.......Complainant
Versus
1. Singla Eye Hospital, Fauji Road, Kotkapura, District Faridkot through
Dr. Somnath Singla, its Director.
2. Dr. Somnath Singla, Director Singla Eye Hospital, Fauji Road,
Kotkapura, District Faridkot.
3. Dr. Rohtas Singla Cataract and Refractive Surgeon, Singla Eye
Hospital, Fauji Road, Kotkapura, District Faridkot.
4. Dr. Aditya Singla, Singla Eye Hospital, Fauji Road, Kotkapura,
District Faridkot.
5. Post Graduate Institute of Medical Education and Research, Sector
12, Chandigarh through its Head of Eye Department.
6. The New India Assurance Company Ltd. Kotkapura Branch,
Opposite IOC Depot, Kotkapura, Distt. Faridkot.
......Opposite Parties
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Consumer Complaint No. 109 of 2015 2
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
Present:-
For the complainant: Sh. Surinder Garg, Advocate
For Op Nos.1-4 : Sh. Ravish Bansal, Advocate
For Op No. 5 : Ex.-parte
For Op No. 6 : Sh. R.K. Sharma, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against opposite parties (hereinafter referred as Ops) on the averments that she is 27- 28 years and is of marriageable age. She contacted Op No. 4 for conducting her laser operation. Op No. 4 checked the eyes of the complainant and informed her that she has glaucoma problem i.e. Kala Motia. However, Op No. 4 prescribed one medicine to be put in the eyes so that the pressure of eyes becomes normal. The said medicine was put in by the complainant in her eyes for some days and on 4.1.2014 Lasik Laser operation was conducted. However, in the month of May/June, 2014, pressure of the eyes started increasing and the complainant was having blurred vision whereas the medicines prescribed by Op Nos. 1 to 4 were continuing. Then father of the complainant alongwith complainant visited Op Nos. 1 to 4 and stated that her problem in the eyes has not been cured as her operation was not properly conducted. However, Op No. 4 stated to the complainant and his father that it is not a serious thing and that he Consumer Complaint No. 109 of 2015 3 will change the medicine and the eyes of the complainant will become normal. Even thereafter, the pressure of the eyes of the complainant did not decrease. Then Op No. 2 told the complainant and her father that she had to undergo a minor surgery of Glaucoma and her eyes will be all right. Op No. 2 conducted the surgery on her left eye regarding Glaucoma on 5.7.2014. Her bandage was removed on 6.7.2014 but she was unable to see anything. On 24.7.2014, as per the reference by Ops, the complainant came to PGI, Chandigarh for check up. After checking, the Doctors of the PGI, informed the complainant and her father that no laser can be done on the patient, who was suffering from Glaucoma and even surgery of Glaucoma conducted by Op Nos. 1 to 4 was not conducted properly. PGI informed that left eye had to be repaired immediately and if the repair is not done immediately then the whole eye will be destroyed. Since the pressure of the right eye was not decreased so the Doctors again performed the surgery of his right eye on 6.8.2014 and she remained admitted upto 13.8.2014. Then the surgery of the left eye of the complainant was also performed by Op No. 5 in PGI but the eye sight of the complainant had not returned and she is still under the treatment of PGI. Complainant paid approximately Rs. 1,00,000/- to Op Nos. 1 to 4 but the problem remained the same and it was not cured by Op Nos. 1 to 4 and her left eye had totally gone due to the negligence on the part of Op Nos. 1 to 4. During the treatment at PGI, Chandigarh, she visited PGI for about 20 times and every time she had paid the expenses of Rs. 10,000/- approximately. The father of the complainant Jaspal Singh is working in the office of Deputy Consumer Complaint No. 109 of 2015 4 Commissioner, Faridkot and he has to leave from his work for the treatment of the complainant. The complainant is of marriageable age and due to problem in her eyes, her prospectus of marriage had diminished. Complainant incurred a sum of Rs. 4 Lacs on her treatment with Op Nos. 1 to 4 and 5. Father of the complainant made a complaint before Hon'ble Minister of Health and Family Welfare and Deputy Commissioner, Faridkot to take appropriate action and its inquiry is still pending. Alleging deficiency in service on the part of Ops, the complainant has claimed compensation of Rs. 50 Lacs alongwith litigation expenses of Rs. 22,000/-.
2. Upon notice, Op Nos. 1 to 4 & 6 appeared whereas Op No. 5 was proceeded ex-parte. Op Nos. 1 to 4 in their written reply took the preliminary objections that the complaint is liable to be dismissed on account of non-joinder of necessary parties; Ops have obtained Professional Indemnity Insurance Policies from The New India Assurance Co. Ltd., Kotkapura Branch for indemnification of any kind of loss or liability as is being sought to be imposed. Ops have already intimated the said Insurance Company about the present proceedings; complainant was treated at concessional rates and she was not charged even a single penny for the glaucoma surgery. Only amount paid by the complainant was for initial Lasik Laser Surgery, after which her vision and IOP was perfect for about 6 months. Her subsequent problem of left eye glaucoma was treated and operated free of cost, therefore, she does not fall within the definition of consumer as defined under Section 2(1)(d) of the Act; complainant had moved the complaint against Ops for inquiry to Consumer Complaint No. 109 of 2015 5 especially constituted Committee comprising Dr. N.R. Gupta, Professor Eyes Department and Dr. Munish Dhawan, Assistant Professor Eyes Department both from Guru Gobind Singh Medical College, Faridkot and Dr. Parminder Kaur, Eye Specialist, Civil Hospital, Faridkot. The Committee examined the complainant thoroughly and perused the treatment record. After detailed inquiry, the report Annexure Op-15 was forwarded by the said Committee to the State Programme Officer, Director, Health and Family Welfare, Punjab, Chandigarh vide letter dated 21.3.2015. The said Committee has given a categorical findings that Ops did not act hastily for performing the surgery, rather, they performed all pre-surgery checks and took all requisite precautions and all the pros and cons were communicated to the complainant and eye sight of the complainant was perfectly all right immediately after the operation. Ops are not at fault in case of subsequent developed complications. The complainant was fully attended by Ops and was given best possible treatment. It was also observed that hypotony is the well known complication of the glaucoma surgery, as such, the matter has already been examined in detail by team of medical experts of Government Institutions and Ops were not negligent or careless in any manner, rather, they had taken all precautions while treating the complainant and that Op No. 1 Singla Eye Hospital has been wrongly impleaded through Dr. Som Nath Singla as he is not Director of Single Eye Hospital, rather, he is an employee of the Hospital. On merits, it has been stated that the complainant contacted Op for conducting Lasik Laser Surgery on 21.12.2013 vide OPD No. Consumer Complaint No. 109 of 2015 6 168321. She was attended by Op No. 4. During check-up, Intra Ocular Pressure (for short IOP) of her eyes was found on higher side, which suggested that the complainant was a case of either Glaucoma or Ocular Hypertension. Two standard tests for detection of Glaucoma were conducted on 22.12.2013. Optical Coherence Tomography (for short OCT), which is a diagnostic test for Glaucoma was conducted on both the eyes of the complainant and report of OCT was normal. HFA Perimetry, which is a gold standard test for Glaucoma diagnosis was also conducted upon the complainant, which was also normal. Since OCT as well as Pertimetry were normal, therefore, possibility of Glaucoma was ruled out and complainant was diagnosed to be a case of Ocular Hypertension. To reduce the IOP, the complainant was advised to put anti-glaucoma drops for few days in her eyes. The complainant and her family members were informed that Lasik Laser Surgery can be performed upon the complainant, if IOP becomes normal and she has to use anti glaucoma medicines throughout her life after the said surgery. The complainant and her family members were very eager to get the said surgery. The complainant was again examined by Ops on 28.12.2013 and IOP was found to be in normal range and they decided to go for Lasik Laser Surgery on 4.1.2014. On 4.1.2014, before surgery Ops again got conducted examination of the complainant's eye and particularly her IOP, which were found to be in normal range. It was only after aforesaid detailed check up over a period of about two weeks and the consent of the complainant was also obtained before surgery. All requisite precautions were followed Consumer Complaint No. 109 of 2015 7 before surgery and pre-surgery tests/check-ups were done and surgery was performed only after all the parameters were found to be normal, therefore, Ops have acted with due diligence. Immediately after the surgery, the complainant's vision was absolutely normal. The surgery was completely successful without any post operative complication. Complainant was put on IOP lowering drugs to keep the same within limits. It was denied that the surgery was not properly conducted. Even as per the complainant's own version, she developed blurred vision only in the month of May/June, 2014, which mean that her vision remained absolutely correct for about 6 months. The subsequent complication developed with the complainant can be result of various reasons such as irregular medication or using of unsafe cosmetics, which is very common amongst young girls of marriageable age and the said cosmetics are steroids based. She attended the Ops on 19.5.2014, 21.5.2014, 24.5.2014, 25.5.2014, 4.6.2014, 7.6.2014, 14.6.2014, 28.6.2014, 5.7.2014, 8.7.2014, 10.7.2014, 12.7.2014, 15.7.2014, 19.7.2014, and 20.7.2014. In fact IOP of the left eye went very low post operatively, which is a common complication of Glaucoma surgery and is referred to as 'Hypotony', which can be recovered within a period of 4 to 10 weeks. So far as right eye's concern, her vision was excellent i.e. 6/6, however, IOP remained high. Since the complainant and her family members express their unwillingness to get further treatment from Ops, therefore, they were referred to the higher Centre for further treatment. However, these Ops do not know the nature of treatment taken at PGI. It was denied that there was any medical negligence on Consumer Complaint No. 109 of 2015 8 the part of Ops in giving treatment to the complainant. Complaint is without basis, it be dismissed.
3. Op No. 6 in its written reply took the preliminary objections that complicated questions of law and facts are involved in the present case, which require voluminous oral as well as documentary evidence, which is not possible in the summary procedure before this Commission, therefore, the matter be relegated to the Civil Court; the complainant has failed to disclose as to how and in what manner the damages have been calculated. As per the decision of the Hon'ble Supreme Court basis for damages have to be disclosed. The claim made by the complainant is highly exaggerated and divorced from reality, only with a view to confer the jurisdiction of this Commission. This Op had insured Op Nos. 3 & 4 under Professional Indemnity Insurance (Doctor) Policy for the period 30.7.2013 to 29.7.2014 covering the risk, subject to the terms and conditions of the policy. The risk covered under the policy for any one accident was Rs. 8 Lacs and any one year was Rs. 16 Lacs. On merits, averments in the complaint were denied for want of knowledge. It has been stated that the complaint is without merit, it be dismissed.
4. The parties were allowed to lead their respective evidence. In support of his allegations, the complainant had tendered into evidence her affidavits Exs. C-A & C-B, affidavit of Jaspal Singh Ex. C-C and documents Exs. C-1 to C-5. On the other hand, Op Nos. 1 to 4 had tendered into evidence affidavit of Dr. Som Nath Singla Ex. Op-1/A, affidavit of Dr. Aditya Singla Ex. Op-1/B, affidavit of Dr. Gurjit Consumer Complaint No. 109 of 2015 9 Singh Khurana Ex. Op-1/C and documents Exs. Op-1 to Op-21. Op No. 6 had tendered affidavit of Tarsem Chand, Manager, NIAC Ex. Op-6/A and documents Exs. Op-6/1 to 6/3.
5. We have gone through the averments made in the complaint, written reply, evidence and documents, both oral as well as written submissions made by the parties.
6. As per the case of the complainant as alleged in the complaint and written synopsis filed on the record, the complainant had approached Ops for Lasik Laser Surgery. The pre-tests of the complainant were conducted by the Ops and IOP was higher, therefore, the complainant was asked to wait for some days and medicines were given to decrease the pressure. The report of Op Hospital is Ex. C-1 and IOP has been stated to be above normal. She was given some medicines to reduce the pressure. She was again checked up by Op Nos. 1 to 4 and when pre-tests were conducted, it was confirmed that IOP was normal and that Lasik Surgery can be conducted. On 28.12.2013, IOP of right eye was 19.2, left eye was 19.3. Again on 4.1.2013, IPO was checked and it was found within normal range 18.3 of right eye and 16.9 of left eye and accordingly, Lasik Laser Surgery was conducted. There was no post operative complication and vision of both the eyes checked on 4.1.2014. It was 6/6. However, the problem was noticed by the complainant in the month of May, 2014 when the complainant approached the Ops. She was advised some medicines and was again checked up on 21.5.2014, 24.5.2014, 25.5.2014, 4.6.2014, 7.6.2014, 14.6.2014 and 28.6.2014. She was advised glaucoma surgery on 5.7.2014 and the Consumer Complaint No. 109 of 2015 10 same was conducted on 5.7.2014. However, after glaucoma surgery, the problem was further deteriorated, although she visited the Ops on 8.7.2014, 10.7.2014, 12.7.2014, 15.7.2014, 19.7.2014 and 20.7.2014 and after that she was advised to approach any other higher hospital and on 24.7.2014, the complainant approached PGIMER, where it was advised that the complainant was suffering from glaucoma, therefore, no lasik laser surgery should have been conducted. Glaucoma surgery was also conducted by the PGI but it was not successful. It has been argued by the counsel for the complainant that the complainant was suffering from glaucoma, therefore, lasik laser surgery should not have been conducted and Ops did not take care of that and conducted lasik laser surgery of the complainant, which further deteriorated the vision of the complainant. However, during the course of arguments, counsel for the complainant accepted high indication of IOP on 21.12.2013. No other test has indicated the presence of glaucoma whereas the reports dated 28.12.2013 and 4.1.2013 indicated that IOP was within normal range. It was argued by the counsel for the Op that in case IOP was normal then the Lasik Laser Surgery can be conducted. It is not necessary that in case the complainant was having higher IOP, she was suffering from glaucoma, it can be a case of blindness. Inspite of raised IOP being a significant risk factor for developing glaucoma, there is no definite findings or literature that higher IOP causes glaucoma. One person may develop nerve damage at a relatively low pressure while another person may have high IOP for years and never develop nerve damages. Uncontrolled glaucoma progression Consumer Complaint No. 109 of 2015 11 leads to permanent damage of the optic nerve and visual field loss, which can lead to blindness. Glaucoma has been nick named "sneak thief of sight" because the loss of visual field often occurs gradually over a long time with resistance of papillomacular bundle that is responsible for maintaining good central vision.
7. Counsel for the Ops has referred to medical literature 'Lasik - The Evolution of Refractive Surgery' by Lucio Buratto and others wherein it has been observed as under:-
"Patients with their intraocular pressure controlled by medication, no compimetric damage, and normal nerve fiber layers as measured by OCT may be operated by LASIK. In this case, the patient should be informed that, for the previously mentioned reasons, the measurement of the ocular tone with the classical applanation tonometer could supply values, which are approximately 10% lower; as a result, they will require periodic testing with OCT and dynamic tonometry."
He has further contended that as per the examination dated 21.5.2014, despite higher IOP of left eye, complainant's vision was perfect i.e. 6x6 of both the eyes and she was put to an adequate medication and was regularly examined by Ops and then she was referred to the higher hospital i.e. PGIMER and there is no opinion of the PGI that lasik laser surgery should not have been conducted whereas opinion of PGI is look like JOAG and counsel for the Op has referred a medical literature 'Diagnosing and Managing Juvenile Open-Angle Glaucoma', which is subset of primary open-angle Consumer Complaint No. 109 of 2015 12 glaucoma (POAG). The two conditions are classified somewhat arbitrarily by age. JOAG affects between age group of 5 to 35 years. JOAG is a rare condition and is estimated to affect 1 in 50,000 individuals because JOAG is a primary disease, all secondary causes of optic neuropathy must be excluded and it has an insidious onset. It is usually detected late and often presents with advanced optic nerve damage and IOP greater than 40 mmHg2. The counsel for the Ops further stated that as per the test report dated 22.12.2013 (Ex. Op-
17), GHT was within normal limits. Apart from the affidavit of Dr. Som Nath Singla Ex. Op-1/A and Dr. Aditya Singla Ex. Op-1/B, who have corroborated the version given by them in the written reply, they have also examined Dr. Gurjit Singh Khurana, who is working as a Director and Chief Surgeon at Surya Eye Hospital, Bathinda and his affidavit is Ex. Op-1/C. He also stated that IOP was found to be on the higher side on 21.12.2013 as IOP less than 20 is to be considered normal one. On 22.12.2013, as per the report Ex. Op-17, GHT was within normal limits. The complainant was again examined on 28.12.2013 and her IOP was normal i.e. 19.2/19.3 and on 4.1.2014, her IOP was reduced to 18.3/16.9, therefore, the condition was perfectly within norms for lasik laser surgery and after the surgery her vision was 6/6, which shows that surgery was performed successfully. Lateron in the month of May, 2014, after a gap of more than 4 months, she raised the complaint and as per the report of PGI, it looks like JOAG, which is a very rare problem as referred above in the medical literature. Although Ops No. 1 to 4 conducted the surgery for glaucoma, they were successful to keep the vision of right eye but they were unable Consumer Complaint No. 109 of 2015 13 to keep the vision of left eye, which is known complication. Even the PGI also could not do it, which is a premier institution of Northern India.
8. Complaint was made by the father of the complainant, upon which inquiry was conducted by the Board of Doctors and they have given their report Ex. Op-15 wherein it was observed that on 5.7.2014, Dr. Singla conducted Glaucoma operation with the consent of the patient but after the operation pressure further decreased and she was referred to the PGI and there is no negligence in referring the patient to PGI in such a condition. PGI conducted two operations but the Doctors could not control the pressure after two surgeries. Ultimately, the Board of Doctor, Dr. N.R. Gupta, Professor Eyes Department, Dr. Munish Dhawan, Assistant Professor Eyes Department, Guru Gobind Singh Medical College, Faridkot and Dr. Parminder Kaur, Eye Specialist, Civil Hospital, Faridkot observed that Dr. Singla cannot be held negligence in any manner because glaucoma appeared after 4 months of the lasik laser surgery. Attempt was made by Ops but they could not control the higher IOP. Even PGI doctors could not do it. It is a common complication, therefore, on the basis of evidence and medical literature referred above, the complainant could not pin-point that the complainant was suffering from glaucoma at the time she approached Ops. No doubt IOP was on higher side on 22.12.2013 but with medication, it was brought within normal range and in case IOP was within normal range then Ops could conduct the lasik laser surgery, which was done and it was successful and after the surgery, the vision of the complainant was Consumer Complaint No. 109 of 2015 14 6/6. In case lateron any problem had arisen then the Ops cannot be held negligent in conducting lasik laser surgery because at the time of that surgery the complainant has not referred even an iota of evidence that the complainant was suffering from glaucoma. Lateron surgery for glaucoma was done but it is rarely successful. Even the premier institute i.e. PGI tried to do it but they were not successful. In case it is common complication then the Doctors could not be held negligent.
9. How the standard of medical negligence can be determined. The basic judgment is "Bolam v Friern Hospital Management Committee", (1957) 1 WLR 582 : (1957) 2 ALL ELR 118 wherein it was observed by the Hon'ble Justice Magnin, which was accepted by the Hon'ble Supreme Court as laying down correct tests in cases of medical negligence, in which it was observed that negligence in law means failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do. It was further held that Doctor is not guilty of negligence if he acted in accordance with practice accepted as proper by responsible body of medical man skill in a particular art." Further in "Kusum Sharma & Others versus Batra Hospital & Medical Research Centre & Others", 2010 (3) SCC 480 Hon'ble Supreme Court observed that 'in case the Doctors have attended the patient with utmost care, caution and skills and with devotion and dedication then the Doctor, who performed the operation had reasonable decree of skill and knowledge and adopted the procedure which in their opinion as in the best in the interest of Consumer Complaint No. 109 of 2015 15 the patient then the Doctor cannot be held responsible for negligence.' It was also observed that 'mere deviation from normal professional practice is not necessarily evidence of negligence - Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment - Doctors in complicated cases take chance even if the rate of survival is low. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. - The negligence must be culpable or gross and not the negligence merely based upon an error of judgment; medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. - A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field and that Medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.' The complainant has not challenged the basic skill of the Doctor and any lack in the procedure. In those circumstances, the Doctor cannot be held negligence. A reference can be made to another judgment of the Hon'ble Supreme Court in the judgment Consumer Complaint No. 109 of 2015 16 "C.P. Sreekumar, M.S. (Ortho) versus S. Ramanujam", 2009(7) SCC 130 (CP). In that case, it was observed by the Hon'ble Supreme Court that the complainant failed to produce any evidence as to Doctor's lack of skill and expertise in performing the operation. It was further held that bald statement of the complainant cannot be accepted when he has neither produced contrary evidence nor rebutted the Doctor's version.
10. In the present case, apart from the statement of two Doctors, affidavit of Dr. Gurjit Singh Khurana Ex. Op-1/C and the report of Board of Doctors wherein it was observed that there was no negligence on the part of Op Doctor that they have waited for sufficient period and when IOP was normal only then Lasik Laser Surgery was performed and there was no post operative problem and problem arose after a gap of 4 months, therefore, Op Doctors were not negligent in performing the operation. Apart from the statement of the complainant, no expert evidence, no medical literature and no judgment has been referred by the counsel for the complainant to rebut the evidence of both the Doctors duly supported by Dr. Gurjit Singh Khurana and the judgment referred above.
11. Sequel to the above, we are of the opinion that the complainant has not been able to establish any case of medical negligence against the Op. Accordingly, we do not see any merit in the complaint and the same is hereby dismissed. No order as to costs.
12. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases. Consumer Complaint No. 109 of 2015 17
13. Order be communicated to the parties as per rules.
(Gurcharan Singh Saran)
Presiding Judicial Member
June 15, 2017. (Harcharan Singh Guram)
as Member