National Consumer Disputes Redressal
Vinay Srivastava vs Dr.P.S.Hardia on 2 January, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 146 OF 1998 Vinay Srivastava S/o V.S.Lal A-146, Sector-20, Gautam Buddha Nagar NOIDA Complainant Versus Dr. P. S. Hardia Dr. Hardia Eye Surgery & Research Centre Indore Opposite Party BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Complainant : Mr. P. I. Jose, Advocate For the Opposite Party : Mr. Shyam Moorjani, Advocate Mr. A. P. Dhamija, Advocate Ms. Anchal Saini, Advocate Pronounced on _02.01.2013 ORDER
JUSTICE J.M. MALIK
1. One of the most wonderful and precious things in nature is the eyes. Unfortunately, in this case, we are dealing with eye sight of complainant, Shri Vinay Srivastava. At the time of filing of this complaint on 29.06.1998, the complainant was aged 34 years old. He was working in a Private Organisation, as a Store Supervisor. His job involves him to extensive reading and writing and for that the complainant needs good eye sight.
However, the complainant was suffering from hypermetorpia and to save himself from this illness, he was using spectacles of plus 9.5 He heard about Dr. Hardia, the OP, in this case and he was informed that he was quite capable to remove the spectacles with the help of a minor operation. The complainant approached the OP in Feb-March, 1995. The Doctor assured him that he will have to do a minor operation and he has cured hundreds of such cases. The complainant gave his consent and he was admitted in the OPs hospital on 28.02.1995.
2. The OP conducted the operation on 01.03.1995. He was advised to take rest till 10.03.1995. However, there was no improvement after the operation. In the month of November, 1995, the complainant approached the OP. OP informed him that this problem can be solved by PRK technique (Photorefractive Keratotomy (PRK) Eye Surgery. Since there was no option open to the complainant, he gave his consent. He was again admitted in the hospital on 06.11.1995 and was operated on 08.11.1995. He was asked to take rest till 18.11.1995. However, still there was no improvement. The complainant again approached the Doctor. First of all, he refused to give his ear to his grievances. Subsequently, OP insisted that he would be perfectly alright by the third operation. The complainant had no other option but to give his consent. The complainant tried to show him the test report of Dr.S.Bharati, In charge of M/s.Bharti Eye Foundation, East Patel Nagar, New Delhi with remarks B/E Central Corneal Haze, dated 07.03.1996. OP told the complainant that such reports are baseless and have no meaning. The complainant was operated for third time on 16.05.1996 and remained admitted under the supervision of OP, till 22.05.1996. To his great surprise, even after going through the third operation, neither his vision was improved nor he could get the relief of removing of his spectacles.
3. The complainant got his eyes tested from Noida Medicare Centre, 16-C, Sector-30, on 28.06.1996. He was informed that Cornea of both the eyes have become opex with remarks Central Corneal Opacity Macular.
4. Thereafter, complainant went to Gurunanak Eye Centre in the month of July, 1996. Doctors told him that there was Corneal Haze which was growing day-by-day.
5. Thereafter, the complainant approached Dr.Rajendra Prasad Centre for Ophthalmic Sciences, AIIMS, New Delhi, for a second opinion on 17.10.1996. They confirmed the same opinion regarding Macular Opacity in both the eyes. The complainant was informed that he will have to go for a Corneal transplant. He was also apprised of the fact that both the eyes are never operated in the case of hypermetropia. Again, as a principle, the eyes are never operated at the same time and the OP was negligent, who had performed the above said three operations.
6. The complainant sent a legal notice to the Doctor/OP through his counsel on 11.05.1998, but it evoked no response. The complainant, therefore, filed the instant complaint.
The complainant has also placed on record copies of the report of discharge slip pertaining to the OP, Ex.A-2, the report of Dr.Bharti, Ex.A-3, Discharge slip dated given by the OP, Ex.A-4, Certificate given by Noida Medicare Centre Ltd Medicare Centre, Ex.A-5, Report from Gurunanak Eye Centre, Ex.A-6, report from Dr.Rajendra Prasad Centre for Ophthalmic Sciences, AIIMS, Prasad Centre for Ophthalmic Sciences , AIIMS, Ex.A-7, legal notice, Ex.A-8.
The complaint was filed with the following prayers:-
That this Honble Forum be pleased to direct to the respondent to pay a sum of rupees twenty four lacs, which is described as under :-
In Rs.
1.Expenses made towards three Operations & Stay 70,000-00
2. Expenses made towards treatment at Noida Medicare Centre Dr.Bhartis Hospital, Guru Nanak Eye Centre & With other doctors. 50,000-00
3. Expenses to be made for corneal Transplant (Approx.) 1,30,000-00
4. Compensation towards leaves, loss of jobs & loss of carrier 1,50,000-00
5. Compensation for loss of vision 10,00,000-00
6.
Compensation towards mental agony & Harassment 10,00,000-00 _____________ 24,00,000-00 DEFENCE:
7. The OP has listed the following defences. Dr.P.S. Hardia is a highly experienced eye specialised surgeon with M.B.B.S., D.O.M.S, M.S. (Opth.), B.C.R.K.(USA), F.O.R.C.E.(I), F.I.J.O.F. (Japan), M.A.A. (Opth.) (USA) qualification and is registered with Mahakoshal Medical Council for more than 30 years. OP is also Member of All India Ophthalmological Association, Indian Medical Association and other similar Associations. He is also qualified in the field of Research and Membership of various National and International Associations for which he has filed documents Anx.R-1.
The OP has performed 5,15,842 eye operations between 1966-1999 at an average of 15,631 operations per year. He has been recognised by recording the same in Guinness World Records and a certificate, Anx.R-2 has been issued in his favour.
8. Secondly, the last treatment was taken on 16.05.1996 and the present complaint was filed by the complainant after expiry of limitation period of two years, on 29.06.1998. The case is barred by Section 24A of the Consumer Protection Act, 1986. The complainant did not suffer any deficiency or negligence during the RKD treatment. The only grouse of the complainant is that despite RKD treatment, he could not remove his plus number glasses nor more improvement occurred in his vision.
9. It is averred that in terms of the medical science and expert medical opinion, Radial Kera Diathermy (RKD) is undertaken for possibility of removing the plus numbers glasses of persons suffering from Hypermetropia. During the RKD, Central portion of the Cornea is never touched.
Consequently, the question of Corneal Haze, or Central Corneal Opacity Macular and/or Macular Opacity does not arise. Those are the false allegations made in the complaint. Again, RKD is performed only for a possibility of removal of glasses. Therefore, no improvement in the vision can be complained. The complainant has failed to disclose that there was any deficiency or negligence in services. No expert opinion is forthcoming. There is no bar under Medical Sciences not to carry RKD treatment in both the eyes for removing the plus number glasses. On the other hand, the treatment in both the eyes is essential for removal of glasses. The stance set up by the complainant is contradictory. The OP categorically denies that by RKD treatment, glasses in each and every patient, can be removed. The ratio of success even after performance of RKD treatment twice, and/or even after use of Exemier Laser Treatment, popularly known as PRK treatment, cannot be 100%. In the field of Medical Sciences, they are not known as 100% success, which can be claimed only by God, the Almighty. The OP has denied that he had assured about the removal of glasses, or was assured that glasses of plus 9.5 vision is a minor problem. The complainant had given his consent, but the complainant did not show the report of M/s.Bharti Eye Foundation. Moreover, the report of M/s.Bharti Eye Foundation does not bear any date. The treatment given to the complainant by OP was an effort for removal of glasses and no adverse effects are caused by the treatment. The service of the notice sent on a wrong address has been denied. All the other allegations have been denied. It is also pointed out that the complainant has failed to produce any voucher for alleged expenses towards stay and operations and treatment at Noida Medicare Centre Ltd, Guru Nanak Eye Centre, New Delhi and other hospitals amounting to Rs.70,000/- and Rs.50,000/-, respectively. The complainant has also not placed on record any receipt and/or estimates about corneal transplant shown at Rs.1.30 lakhs or any loss of career at Rs.1.50 lakhs. The imaginary loss of vision at Rs.10.00 lakhs, which is not at all relevant to RKD or PRK treatment and compensation for mental agony and harassment are not supported by any documentary evidence.
KEY EVIDENCE : REPORT FROM AIIMS, NEW DELHI, DT.14.01.2009
10. The most important document is the expert report from Dr.Rajendra Prasad Centre for Ophthalmic Sciences, AIIMS, New Delhi, dated 14.01.2009. A panel of four Doctors from Dr.Rajendra Prasad Centre for Ophthalmic Sciences , AIIMS, New Delhi reviewed the entire records supplied and their opinions were submitted vide this report. The important factors in this report are :
Radial Kera Diathermy is not the same as Radial Keratotomy. The Radial Keratotomy was performed for correction of Myopia not for hypermetropia. There is no literature available on RKD for correction of hypermetropia. It may be treatment like thermokeratoplasty by the use of diathermy to correct hypermetropia, in which diathermy spots are given in the para-central part of the cornea. This procedure may not be able to correct the total 9.0 diopters of hypermetropia but it may reduce the power of glasses.
Then there are various comments given by the above said Doctors. At Point No.3, in respect of general opinion, regarding the treatment as per the records, the comments/documents are as follows:-
This is regarding Vinay Srivastava s/o V.S. Lal, who underwent three surgeries for the removal of Hyperopic glasses at the Dr. Hardia Advanced Eye Surgery and Research Centre, Indore. The complainant was 31 years old at the time of first surgery. His uncorrected visual acuity was counting fingers at 6 feet. He had a refractive error of +9.0 Dsph/ + 1.0 D cyl. @20 in the right eye (OD) and +9.0 Dsph/ + 2.0 D cyl. @160 in the left eye (OS). The best corrected visual acuity (BCVA) was 6/12p OD and 6/18 OS and near vision was N36 in both the eyes (Exhibit CW1/4 page No. 20). He was using glasses for last 18 years and there was no change in the power of glass for last 4 years.
He was advised Radial Keradiathermy to reduce power of glasses and the surgery was performed on the 1st of March, 1995 (Exhibit CW1/4page No.22). As per records, on 08-05-1995, his uncorrected visual acuity (UCVA) was 6/36 OD and 6/36 OS and the BCVA was 6/12 with+4.0D sph OD and 6/24 with +3.0D sph, and near vision with +2.0 D sph add was N6 OD and N12 OS.
Comment: is, his uncorrected vision had improved but the power of glasses had reduced to some extent but was not corrected totally.
The report further states as under:
As per records, on 06-11-1995, his UCVA was 5/60 OD and 6/60 OS and BCVA was 6/18 with +6.0 D sph/1.25 D cyl @ 40OD and 6/18 with +6.25D sph/ +sph/+2.0 D cyl @25 and near vision was N36 both eyes. At this stage he was advised PRK in both the eyes (Exhibit CW1/4 page no26). There was no record of corneal haze at this point of time. On 08-11-1995, PRK was done in both the eyes. As per available records, on 22-04-1996, his UCVA was 6/60 and 3/60 OD and OS respectively and the BCVA was 6/18 with +6.0 sph/ +1.0D cyl @75 and 6/24 with +7.0 D sph/ +2.0D cyl @95. The near vision was N12 in both the eyes with a near add of +3.0 Dsph OD and +2.0D sph OS.
On 07-03-1996, central corneal haze was noted at Bharti Eye Foundation. (Exhibit CW1/3page no.17).
On further complaint of blurring of vision by the complainant, PRK was repeated in both the eyes on 15-05-1996. On 24-06-1996, his UCVA was 6/60 OD and 4/60 OS. There was no improvement in the right eye with refraction, while the left eye improved to 6/60 with +3.0 D cyl @90 and the near vision was N36 in both eyes. On 28-06-1996 at Noida Eye Care, central corneal opacity was noted in both the eyes and the BCVA was 6/18 with +6.0 D sph and 6/36 with +9.0 sph. (Exhibit CW1/5 page no33).
Again comments under heading regarding PRK, is as follows:
Comments: it is apparent that PRK was advised to correct the residual power of glasses but the records after first PRK did not show much benefit in terms of reduction of power of glasses the unaided vision also did not improve. The corneal haze is well known problem after PRK.
It was also noted that :
In August, 1996, the complainant was evaluated at Guru Nanak Eye Centre and visual acuity recorded was 6/24 OD and <6/60 OS and a significant corneal haze was noted. (Exhibit CW1/6 page on 37).
Another comments are as follows:
Even after second PRK did not show much benefit in terms of reduction of power of glasses the unaided vision also did not change. The corneal haze when persist for longer duration that can cause opacity in the cornea. The corrected vision had improved with contact lenses.
Point 4 : The present status of the eye.
As per the records placed on the last treatment findings are of 27th Jan 1998, which shows the visual acuity of 6/24p OD, and 6/24p OS with contact lenses, an addition of +5.0 Diopters sphere in OD and +3.0 Diopters in Os over the contact lenses improved the visual acuity to 6/12 in both the eyes. No other details are available for ocular condition; therefore it would be appropriate if the complainant could be assessed for his present status by panel of experts.
11. The report is based on records. We find force in the submission of OPs counsel that record consisting of M/s.Bharati Eye Centre, Noida Medicare Centre and Guru Nanak Eye Hospital carries exiguous value, as the documents pertaining to these hospitals were not proved as per law, i.e., no Doctor, no affidavit, no other evidence was adduced to prove these documents.
REPORT FROM A.I.I.M.S., New Delhi, dated 4/6th July, 2009
12. Thereafter, on 4/6th July, 2009, another report reveals that experts consisting of four Doctors had medically examined the complainant on 05.06.2009 and their opinions were placed before this Commission. The four Doctors are Prof. Jeewan S. Titiyal, Dr.Namrata Sharma, Dr.Rajesh Sinha and Dr.Chandrashekhar Kumar. Their report runs as follows:-
The uncorrected visual acuity was 5/60 and 3/60 in the right and left eye respectively. The uncorrected near vision was N36 in both the eyes. The best corrected visual acuity was 6/18 with +9.0D sph/+2.0D cylx120* in the right eye and 6/24 with +9.0D sph/+3.0D cylx60* in the left eye. The best corrected near vision with +2.0 add was N8 in right eye and N12 in the left eye. The best corrected binocular visual acuity for distance was 6/18 and for near it was N8. The colour vision was within normal limit.
There was presence of superficial diffuse subepithelial corneal scar which was denser in periphery and rarer in the centre in both the eyes. In the left eye, there was presence of a single hypertrophic nodule in the central part of the corneal surface. There was presence of bilateral multiple peripheral tongues like areas of scarring with vascularization perhaps corresponding to the sites of radial keradiathermy, which was extending for up to 1.5 to 2.0 mm into the cornea.
The keratometry readings were 43.75@25*/ 47.25@115* in the right eye and 47.25@25*/ 48.62@115* in the left eye. The specular count was 3134 and 3145 in right and left eyes respectively. The intraocular pressure on Non-contact tonometer was 15mmHg and 17mmHg in the right and left eyes respectively. On Ophthalmoscopy, the disc and macula were within normal limits in both the eyes and there was no treatable lesion in the retinal periphery. The tear film breakup time was more than 9 seconds and the schirmer reading was more than 35 in both the eyes.
The records of the patient and the findings on clinical examination suggest that the peripheral multiple corneal scars were due to the diathermy spots and the central and peripheral subepithelial haze was due to the photorefractive keratectomy performed for the correction of hyperopic refractive error. The probable cause of subnormal vision in this patient was uncorrected refractive error and corneal subepithelial haze.
SUBMISSIONS:
13. We have heard the learned counsel for the parties. The learned counsel for the OP explained that the OP is a qualified person and has very good reputation and as per the antecedents already mentioned in the complaint which were never denied.
He further submitted that the Doctor does not have the records as all the records were handed over to the complainant which he has produced before this Commission (at Pgs. 11-15 of Paper-book, Part-I).
14. He contended that under these circumstances, the allegation of non-production of record does not cut much ice. It was also submitted that the record of M/s.Bharti Eye Foundation, East Patel Nagar, New Delhi and record of Noida Medicare Centre, is not legally admissible in evidence. He explained that certificates of those Doctors or any person from those hospitals or their affidavits did not see the light of the day. Their absence has pushed the case of the complainant to an edge of a cliff. It was submitted that the expert report sent by the AIIMS, New Delhi mentioned above clearly proves, inter-alia:
i) Radial Kerato Diathermy is not the same as Radial Keratotomy;
ii) RKD procedure may not be able to correct the total 9.0 diopters of Hypermetropia but it may reduce the power of glasses.
iii) Mostly procedures for spectacle removal like PRK, LASIK are performed in both eyes simultaneously;
iv)RKD to reduce power of glasses was performed on 1st March, 1995 after which uncorrected vision has improved but the power of glasses has reduced to some extent;
v) The left eye improved to 6/60 with +3.) D cyl@90* and the near vision was N36 in both eyes.
vi) The corrected vision has improved with contact lenses.
vii) Present status of the eyes :- Contact lenses has improved the visual acuity to 6/12 in both the eyes.
15. Counsel for OP further submitted that it is clear from the above export record, the allegations made by the complainant that :
i) That RKD/PRK is not proper treatment for correction of Hypermetropia,
ii) That procedure for removal of glasses like RKD/PRK/LASIK is not performed in both eyes simultaneously;
iii) the performance of RKD/PRK has resulted in loss/reduction of his eye sight, have been proved concocted, fabricated and false.
16. It was also pointed out that the Apex court in its judgment dated 17.02.2009, in the case of Martin F. Dsouza Vs. Mohd. Ishfaq reported in II (2009) SLT 20 at Para 110, 111, 115, 117, 123 and 124 has held as under :-
i) Whenever a complaint is received against the Doctor or Hospital by the consumer foras, then before issuing notice to the doctor, the Consumer foras should first refer the matter to a competent doctor or a Committee of Doctors, specialised in the field and only upon report of experts that there is a prima facie, notice may be issued to concerned Doctor/Hospital.
ii) The consumer foras are not experts in medical science and must not substitute their own views over that of the specialists.
iii) The National Commission has sought the assistance of the AIIMS to give a report and the experts of the AIIMS has given the report which shall not be neglected by the Commission which consist of layman in the field of medicine.
iv) The Consumer foras should keep the above factors in mind when deciding cases related to medical negligence and not take a different view which would be in fact a dis-service to the public.
17. Counsel for the OP has also placed reliance on another judgment of the Apex court in the case of Jacob Mathew (Dr.) Vs. State of Punjab & Anr., reported in III (2005) CPJ 9 SC, wherein it was held:
i) Surgeon cannot and does not guarantee that the result of surgery would be invariably beneficial even by implication it can be understood that the surgeon possess of the requisite skill in that branch of profession which he is practicing.
ii) Medical practitioner not to be held responsible because something went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment and or one school of thought in preference to other.
iii)
1. Judges preference for one body of distinguished professional opinion to another is not sufficient to establish negligence. A mere deviation from profession practice is not necessarily evidence of negligence.
2.
An error of judgment on the part of professional is also not negligence.
3. Simply because a patient has not favourably responded to a treatment or a surgery has failed, the doctor cannot be held liable by applying doctrine of res ipsa loquitur.
4. Human body and its working is nothing less than a highly complex machine coupled with the complexities of medical science, the scope of misimpressions, misgivings and misplaced allegations against the operator, i.e. doctor shall not be ruled out.
18. Again, in Kiran Bala Vs. Christian Medical College & Hospital, reported in 2003 (I) CPR 238, NC, it was observed that the alleged negligence has to be proved by complainant by producing medical literature or documentary evidence or accepted evidence.
19. In Calcutta Research Medical Research Institute Vs. Bimlesh Chatterjee, reported in I (1999) CPJ 13 (NC), it was held that the onus of proven negligence is clearly on the complainant.
20. He has also quoted Hucks Vs. Cole decided by Lord Denning 2002 CPJ 136 NC, wherein it was held that the Doctor is not to be held negligent because something went wrong. He was not liable for mischance or misadventure or any error of judgment of taking one choice out of two or for favouring one school rather than another.
21. Lastly, in Mrs. Indira Kartha Vs. Dr.Mathew Samual Kalarickal, reported in 1 (2006) CPJ 62 (NC), it was held that a Medical Practitioner is not an insurer and cannot be blamed everytime when something goes wrong.
22. The counsel for the OP pleaded that removal of wrong limb, operation on wrong patient, injection of drug to which the patient is allergic, use of wrong gas, leaving inside the patient swaps and other equipments after surgery, raise no complicated questions requiring evidence. But in other cases, complicated questions require evidence.
Consequently, the complainant should be asked to approach the civil court for proper relief. Learned counsel for the OP submitted that there is no deficiency in service rendered by the OP and referred to medical prescriptions (photocopies) placed on record.
FINDINGS :
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 Doctor is supposed to preserve the record for a period of three years at least.
24. Secondly, the report of AIIMS, New Delhi, is a record of utmost importance. The OP has selected a few lines which go in his favour. The record clearly goes to show that there was no literature available on RKD for correction of Hypermetropia. This is Doctors own invention which is not recognised by any accepted literature. He did not adduce evidence that he had conducted the operations in accordance with the accepted theories. The patient is not supposed to pay heavy amount for adventurism.
25. Thirdly, the report further mentions that the patient did not get much benefit in reduction of power of glasses. A patient goes to a Doctor to get the glasses removed, what happens when his position further deteriorates than the patients earlier condition, which was prevailing before the treatment conducted by the OP.
26. Again, according to reports given by A.I.I.M.S, Radial Kera Diathermy is not the same as Radial Keratotomy. The Radial Keratotomy was performed in correction of myopia and not for hypermetropia. Since it was surgery of plus number, the OP/Doctor should have informed its pros and cons to the patient/complainant. .
27. Last, but not the least, the report reveals that Corneal haze is well known problem after PRK. It was the duty to apprise all the facts such like after-effects can crop up afterwards. The Doctors noted a significant corneal haze. This is in respect of the report dated 14.01.2009. Let us now turn to the report dated 4/6 July, 2009, which has been quoted above. It clearly goes to show that the peripheral multiple corneal scars were due to diatherpy spots and the central and peripheral subepithelial haze was due to the photorefractive keratectomy performed for the correction of hyperopic refractive error. The probable cause of subnormal vision in this patient was uncorrected refractive error and corneal subepithelial haze. It also goes to show that the vision of the patient was also affected.
28. Further, the problem of the patient did not stop here. With all these additional ailments, he had to suffer a lot. The complainant had to approach Dr. Rajendra Prasad Centre for Ophthalmic Sciences, AIIMS, New Delhi from 16.01.1997 onwards. He was also referred to Eye Bank Clinic. He was also advised to be admitted in the hospital. The treatment went on up to 31.03.1998. The patient was treated on various dates. The patient was treated for Post-PRK defects. The complainant was advised for a corneal transplant. The Doctors came to the conclusion that he was suffering from Macular Opacity in both the eyes. Though transplant was not conducted till the filing of the complaint, but he has claimed Rs. 1,97,200/- CW1/9.
29. FEW FACTS EMERGING FROM MEDICAL RECORDS & WEB SITE:-
Before the last operation on 16.05.1996, the examination reveals that there were RKD marks on both eyes and pupil not reacting.
For reasons best known to the respondent they filed typed version of medical records wrongly as RKD done instead of RKD marks and pupil reacting instead of pupil not reacting (Page 31 of Medical record Part-II).
30. The operations conducted by the OP are not of regular procedural in nature. We came across the following version in the web site:-
i) Because the outcome of surgery on the first eye may affect how surgery is done on the second eye, many surgeons wait six weeks, before treating the second eye. This delay also reduces the risk of spreading a corneal infection to the second eye.
While waiting for the second procedure, you are usually fitted with a contact lens for the eye that is still near-sighted, since wearing two very different eyeglass prescriptions causes distorted vision.
ii) In LASIK surgery, after RK, there is an inherent weakness of the cornea. Although visual acuity after RK-induced hyperopia may be improved by LASIK, the long-term refractive stability of the procedure is uncertain. Patients who undergo such a procedure should be monitored for developing localized midperipheral corneal steepening and be informed that in Lasik, such a complication can occur.
iii) If the cornea is too weakened by previous surgery, it may be appropriate to consider lens-based surgery such as RLE or P-IOL. These techniques will not resolve fluctuations or corneal irregularities, however, they can be appropriate techniques to resolve some refractive errors. Intraocular lenses used for RLE may be multifocal or self-accommodating to lower the effects of presbyopia.
iv) There are a number of different surgical techniques used to reshape the cornea.
During PRK, an eye surgeon uses a laser to reshape the cornea. This laser, which delivers a cool pulsing beam of ultraviolet light, is used on the surface of the cornea, not underneath the cornea, as in LASIK.
[Extracted from website - BY GLENN HAGELE].
31. The complainant has also filed on record, literature on Long, Short and Weak Sight and their Treatment by the Scientific Use of Spectacles by J.Soelberg Wells, Ophthalmic Surgeon at the Middlesex Hospital, wherein he opined that Each eye should be tried separately, as the degree of hypermetropia may vary.
The patient is next directed to read very small print with this glass, and if we find that he can read No.1 clearly and distinctly as close as 56 from the eye, we know that his range of accommodation is also good. The position of the near point, and the extent of the range of accommodation, will of course, vary with the age of the patient.
32. In this case, the Doctor was negligent in performing the surgery on both the eyes.
He should have waited for some time after conducting the second surgery.
33. Secondly, before performing the surgery, the Doctor should have performed some tests to know whether the patient can undergo such surgery, at that time. There is no evidence which may go to show that before performing the surgery, the Doctor had explained all the risks to the patient. The withholding of the record by the OP, without which, we cannot know what test was performed, is another aspect of negligence on the part of the Doctor, and he advanced no argument. But the Doctor should have explained the Lasik risk complications, side effects, problems to the patient. The withholding of record is nothing but a ruse to make sure that negligence on the part of the Doctor should not be detected.
34. FEW CASES FILED AGAINST DR.P.S. HARDIA/OP:
There are a number of cases filed against the OP. Few cases filed against the OP/Dr.P.S. Hardia are as follows. In Smt. Adarsh Bararia Vs. Dr. P.S. Hardia, 2000 (2) CPR 188, there was total loss of eye sight of the son of the complainant aged 14 years.
This Commission awarded a sum of Rs.1,00,000/- with interest @ 12% p.a. from the date of filing of complaint failure to pay amount in two months to result in interest at the rate of 15%. Two other cases have also come to our knowledge. This Commission, in First Appeal No.182 of 2000 titled Dr.P.S. Hardia Vs. Kedarnath Sethia, decided on 20.07.2004, the Doctor was found negligent and confirmed the finding of the State Commission that despite requiring advance glaucoma filtering surgery, Dr. P.S. Hardia performed RKD technique by which the complainant lost his sight in the right eye. The complainant was awarded Rs.1,00,000/- with interest @ 12% p.a. There is also a third case. In Raj Kumar Gupta & Ors., Vs. Dr.P.S. Hardia & Anr, wherein the Original Petition No.11 of 1997, decided by this Commission on 19.01.2007, filed against the Doctor was dismissed in favour of Dr. P.S. Hardia.
35. WHO IS TO CARRY THE BALL IN PROVING NEGLIGENCE OR INNOCENCE?
The complainant has cited an authority reported in Dr. Shyam Kumar Vs. Ram Shbhai Harmanbhai Kachhiya, 2006 JMC 74, decided by this Commission, wherein it was held :
After three operations, since the Respondent was not happy he approached eye specialist Dr.Ashok Shroff who on 30.12.1993 certified that the condition of the retina in both the eyes of the respondent is not good. His vision is very poor and is not likely to improve and he may be considered as visually handicapped person.
Further, it is needless to mention that without having three pre-operative, operative and post-operative finds and other investigation reports, no expert can give an opinion whether treatment/operation was correct or not. The revision petitioner who had performed three operations failed to explain what was the condition of the respective eyes before every operation; what was the indication of each operation; what operation did he perform; what was the result of each operation and why in spite of that the complainant lost his vision. That was the reason why Dr.Shroff could not say whether the complainant lost his vision because of negligence or not. In such cases, the principle of res ipsa loquitur can be applied. It was for the petitioner Doctor to establish the reasons for losing of the eyesight.
As per the authority, it is the OP and nobody else who is to prove his case. But unfortunately, he does not have any record.
36. LIMITATION: According to OP, the case should have been filed within two years from 16.05.1996, when the last surgery was performed, but this case was filed on 29.06.1998, after the expiry of two years.
37. This is not a coherent argument. The complainant remained in the supervision of the OP till 22.05.1996. Thereafter, he got his EYES tested from various hospitals and A.I.I.M.S., where after 17.10.1996, he was informed that he will have to go for a Corneal Transplant. The time started running from that report. Consequently, we clap no significance to this faint argument.
38. WHAT IS AGAINST COMPLAINANT?
It must be mentioned here that the complainant has failed to produce the bills of the expenses made towards three operations and stay, bills regarding treatment at Noida Medicare Centre or Dr.Bharti Eye Foundation or Guru Nanak Hospital or with other Doctors. He has not given the estimate as to how much money he has spent for corneal transplant. Again, he has not produced any document in proof that he has lost his job and how much money he was earning while in job/service.
39. COMPENSATION: Ex.CW1/9 (A-D) pages 55-59 show the details of expenses incurred by the complainant (Rs.1,97,200/-). It is averred that presently, the eyes of the complainant are so bad that he is hardly able to do anything, unless a corneal transplant, as advised by the AIIMS is done, which is extremely costly (More than Rs.2,00,000/), even then, it will not give him the same vision and comfort. One should indulge in such like adventure, only if he is absolutely sure about his capability. To earn money, one should not put the other person in an awkward position. Keeping in view all the facts and circumstances, we award the complainant a sum of Rs.5,00,000/-. This case was filed on 29.06.1998. This is coming to an end in the month of January, 2013.
Delay is a double-edged sword which may cut both the sides. The object of Consumer Protection Act, 1986 already stands frustrated. We, therefore, grant interest at the rate of 9% p.a. with effect from 28.02.1995 when the complainant was admitted for the first time, till its realisation upon Rs.5,00,000/-. Litigation expenses in the sum of Rs.1,00,000/- is also granted in favour of the complainant and against the OP, to be paid, within 30 days from the date of this order, else, it will carry interest @ 9% p.a., till realisation.
....J (J.M. MALIK) PRESIDING MEMBER .
(VINAY KUMAR) MEMBER dd/26