State Consumer Disputes Redressal Commission
Dr. Sabitha S vs P K Daniel on 23 November, 2015
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NOS.39/14, 149/14 & 150/14 COMMON JUDGMENT DATED :23/11/15 (Appeals filed against the order in CC.No.191/2012 on the file of CDRF, Pathanamthitta, order dated : 28.11.2013) PRESENT SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SMT.A.RADHA : MEMBER SMT.SANTHAMMA THOMAS : MEMBER APPEAL NO.39/2014 APPELLANT P.K. Daniel, Green Villa, Ezhamkulam, Theppupara. P.O., Adoor Taluk, Pathanamthitta. (By Adv. Sri. Narayan. R) Vs. RESPONDENTS 1. Dr. Sabitha. S., Sabitha Eye care Hospital, St. Peters Junction, Pathanamthitta. P.O., Pathanamthitta-689645 2. The Proprietor, Sabitha Eye care Hospital, St. Peters Junction, Pathanamthitta. P.O., Pathanamthitta-689645 (By Adv. Sri. Rakesh Kumar) APPEAL NO.149/2014 APPELLANT 1. Dr. Sabitha. S., Sabitha Eye care Hospital, St. Peters Junction, Pathanamthitta. P.O., Pathanamthitta. 2. Proprietor, Sabitha Eye care Hospital, St. Peters Junction, Pathanamthitta. P.O., Pathanamthitta. (By Adv. Sri. P.K. Mathew & Rakesh Kumar) Vs. RESPONDENT P.K. Daniel, Green Villa, Ezhamkulam, Theppupara. P.O., Adoor Taluk, Pathanamthitta. (By Adv. Sri. Narayan. R) APPEAL NO.150/2014
(Against the order in CC.No.50/2013 on the file of CDRF, Pathanamthitta, order dated : 28.11.2013) APPELLANTS
1. Dr. Sabitha. S., Sabitha Eye care Hospital, St. Peters Junction, Pathanamthitta. P.O., Pathanamthitta.
2. Proprietor, Sabitha Eye care Hospital, St. Peters Junction, Pathanamthitta. P.O., Pathanamthitta.
(By Adv. Sri.P.K.Mathew & P. Rakesh Kumar) Vs. RESPONDENT Jose. M.P., Madukkamoottil House, Elakolloor. P.O., Konni.
(By Adv. Sri. K.G. Suresh & Adv. Sri.Nazia Sharaf) COMMON JUDGMENT SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER These appeals arise from the common order of CDRF, Pathanamthitta in CC.Nos.191/2012 & 50/2013. Appeal No.39/14 is filed by the complainant in CC.NO.191/2012 seeking enhancement of compensation awarded. The opposite parties in both the complaints are the same. Appeal No.149/2014 is filed by the opposite parties in CC.NO.191/2012. Appeal No. 150/14 is filed by the opposite parties in CC.No.50/2013. The complainant in CC.No.191/2012 is a 78 years old person who underwent cataract surgery and phaco emulsification with IOL in the left eye in the second opposite party hospital on 02.09.2011. The surgery was performed by the first opposite party. It is alleged in the complaint that on 04.09.2011 he felt pain in the left eye and oozing of tear. He contacted the second opposite party and as directed consulted the first opposite party in the morning on 05.09.2011. But the first opposite party showed no interest to treat him and directed him to continue further treatment in some other hospital. So the complainant approached Giridhar Eye Institute, Kochi for expert treatment. Though the treatment there solved the eye problems to some extent, he lost vision of left eye. He had to spend Rs.16,000/- in the second opposite party hospital and Rs.55,000/- in the Giridhar Eye Hospital for the purpose of treatment. According to the complainant the first opposite party is not qualified to conduct cataract surgery, the second opposite party lacked qualified experts to provide such type of treatment, they failed to properly sterilize the operation theatre, they did not provide quality treatment, and used below standard uncertified materials and medicines for treatment. It was due to the fault and negligence of the opposite parties, the complainant suffered loss of left eye vision.
2. The complainant in CCNo.50/2013 is a 55 years old school teacher who underwent cataract eye surgery on 02.09.2011 itself in the second opposite party hospital. According to him on the next day even before post operative examination oozing of tear and pain developed. On approaching the first opposite party the complainant was told that the problems could be solved by applying medicines and sent him back after giving medicines, but the problem continued. While so at 11.a.m. on 04.09.2011 he was asked over telephone to meet the first opposite party at her home. She examined the complainant without any equipment and told him that the iris of the right eye is in an infected condition and referred him to the Chaithanya Eye Hospital, Thiruvananthapuram for further treatment. He was immediately got admitted in the said hospital and treated till 13.09.2011. In the meanwhile he lost vision of right eye. The allegations of negligence made are similar to those in CC.No.191/2012. The complainant in CC.No.191/2012 claimed compensation of Rs.6,00,000/- and the complainant in CC.NO.50/2013 claimed compensation of Rs.5.75/- lakhs.
3. The contentions raised by the opposite parties in both the cases are identical. They admitted that the complainant's underwent surgery in the second opposite party Hospital as alleged. They contended that reference of the complainants was for better management in higher centres. According to them the second opposite party hospital is a well equipped one and the first opposite party is qualified to conduct cataract surgery. Low quality medicines or materials were not used by them. Only standard items of materials and medicines were used. The treatment done was of required standard and in accordance with medically accepted procedure. The operation theatre was properly sterilized. The first opposite party exercised reasonable degree of skill and care. All the patients who underwent surgery on 02.09.2011 in the same operation theatre using the same materials and equipments did not contract post operative endophtalmitis. This shows that the cause of infection was not from the operation theatre. Post operative endophtalmitis is a reported complication caused by infection from any source which cannot be attributed to the negligence on the part of the opposite parties. In fact, the complainants were called by the opposite parties for examination, on the basis of the suspected infection found in a patient named Kunjamma Sudhakaran who had also underwent cataract surgery. When the complainants came first opposite party examined them and found suspected infection. Hence they were immediately referred to higher centers for better management. Cataract surgery in the right of the complainant in CC.No.191/2012 was done by the first opposite party on 26.08.2011 and there was no complication. Loss of eye sight of the complainants was due to infection (endophtalmitis). The treatment expenses of the complainant in CC,.No.191/2012 at Giridhar Eye Institute, Cochin was met by the opposite parties and it was a humanitarian gesture and not because the opposite parties admitted negligence on their part. Compensation is claimed without any basis. The first opposite party is having qualifications of MBBS and DOMS and was in government service till 2006. She had conducted approximately 7000 cataract surgeries. For her best services awards were given by various organizations. Since there was no negligence on the part of the opposite parties, the complaints were liable to be dismissed.
4. The consumer forum recorded evidence separately in CC.Nos.191/2012 and 50/2013. The complainants in both the complaints were examined in both the complaints. Kunjamma Sudhakaran who admittedly underwent cataract surgery on the same day and her eye was infected was also examined in both the complaints. In CC.No.50/2013 in addition the wife of the complainant was also examined. The documents marked in evidence include the discharge summary and medical report issued from the first opposite party hospital, the discharge summary and medical reports issued from the higher centers in which the complainants were treated after infection and medical bills. On the side of the opposite parties the first opposite party was examined as DW1 and an expert witness was examined as DW2 in both cases. Documents were also marked on their side. After the entire evidence was recorded both cases were heard together and the consumer forum passed a common order awarding compensation of Rs.96,000/- and cost of Rs.5000/- to the complainant in CC.No.191/2012 and compensation of Rs.1,96,000/- and cost of Rs.5000/- to the complainant in CC.No.50/2013.The opposite parties have preferred appeals, 439/2014 & 150/2014 challenging the conclusions in CC.Nos.191/2012 & 50/2013. Not satisfied with the compensation awarded, the complainant in CC.No.191/2012 has preferred Appeal No.39/2014.
5. Common questions arise for decision in these appeals. The main question relates to the deficiency in service and negligence in conducting surgeries alleged against opposite parties. The sufficiency of quantum of compensation awarded in CC.No.191/2012 would also arise for consideration.
6. Admittedly, the complainants underwent cataract surgery on the same day on 02.09.2011. It is admitted in the version itself that on the said day another patient Kunjamma Sudhakaran also underwent cataract surgery in their hospital. It is further admitted that endophtalmitis was the reason for the loss of eye sight of the complainants. The allegations in the complaint are that the opposite parties failed to use quality medicines and materials during surgery and the operation theatre was not properly sterilized. Further the first opposite party while performing surgery did not show reasonable skill and care .All these allegations are denied by the opposite parties. Regarding the lack of quality of medicines and materials and qualification of opposite party no.1, there is no sufficient proof as observed by the consumer forum. So the main question is whether the cause of infection was the second opposite party hospital. From Exts.A2 & A3 discharge summary issued from the Giridhar Eye Institute, Kochi and from A3 medical report issued from the Chaithanya Eye Hospital and Research Institute, Thiruvananthapuram, it can be seen that the same organism namely pseudomonas aeruginosa infected both the complainant's eyes. It is admitted in the version itself that loss of eye sight of the complainants was due to infection (endophtalmitis). Thus it is clear that infection was the cause of loss of the eye sight. The only expert evidence available is that of DW2. He deposed that from the records produced it is seen that the complainants contracted endophtalmitis after the cataract surgery. He explained that this is an infection caused by bacteria, in this case by pseudomonas. It is difficult to locate the source of the bacterial infection. The infection may be endogenous or exogenous. Exogenous infection would be from atmosphere and the other one would be from contaminated materials. He pointed out the possibility of the patient getting infection after discharge from the hospital. He explained that in cataract surgery there is .04 to .4% chance of contracting endophtalmitis. He further explained that if the operation theatre is not properly sterilized, there is chance of exogenous infection. In cross examination he explained that if proper examination is done to some extent the source of infection can be identified. The details of any such examination is not available in records. He has prior acquaintance with the first opposite party. He deposed that it is unusual that out of five patients who underwent the same surgery three contracted infection and lost sight. Delay in diagnosing the infection enhances the chances of loss of eye sight.
7. In the background of the above expert evidence the following admitted circumstances become relevant. Admittedly, apart from the complainants Kunjamma Sudhakaran were the among the patients who underwent cataract surgery on 02.09.2011. In the version itself it is mentioned that Kunjamma Sudhakaran approached the first opposite party after surgery and the surgeon suspected infection. So the first opposite party contacted the complainants and examined them and she found suspected infection. It was therefore they were referred to higher centers for further treatment. This infection developed soon after the surgery even before the date fixed for post operative examination. This circumstance together with the evidence of DW2 that it is unusual to develop the same infection for three patients out of five persons who underwent cataract surgery becomes highly relevant. Further the same organism has infected the eyes of the complainant's. This is not likely if exogenous infection is from their houses after discharge. It is admitted in the version that the opposite parties have met the treatment expenses of the complainant in CC.No.191/2012 in the higher centre where he was managed subsequently. This is in a way admitting that the opposite parties were responsible for the infection and not merely that humanitarian consideration compelled them to do so. In the background of the above circumstances, the consumer forum was fully justified in holding that deficiency in service on the part of the opposite parties caused the complications and they were liable to compensate the complainants.
8. Regarding the quantum of compensation awarded it is seen that the consumer forum has taken into account all relevant circumstances. Regarding the compensation awarded to the complainant in OP.No.191/2012 two more circumstances were correctly taken into account. These are firstly the treatment expenses of this complainant at the higher centre was met by the opposite parties and secondly the age of this complainant. He was aged 78 years when the cataract surgery was performed on him. Disability caused at this age has not the same consequences as the disability caused to a 55 year old person. So having regard to all the circumstances it appears that the compensation awarded to both the complainants is reasonable. In short, the order of the consumer forum requires no interference.
In the result, all the appeals are dismissed with direction to the parties to bear their respective costs.
K.CHANDRADAS NADAR : JUDICIAL MEMBER A.RADHA : MEMBER SANTHAMMA THOMAS : MEMBER Be/ KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NOS.39/14, 149/14 & 150/14 COMMON JUDGMENT DATED :23/11/15 Be/