National Consumer Disputes Redressal
Ms. Prasanna Lakshmi vs Maxivision Laser Center Pvt. Ltd. on 5 April, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 170 OF 2013 (Against the Order dated 28/12/2012 in Complaint No. 50/2010 of the State Commission Andhra Pradesh) 1. MS. PRASANNA LAKSHMI D/O. SRI V.T. RAJ, R/O. # 204, LOTUS FLORA, PRAKASH NAGAR, BEGUMPET-500016 HYDERABAD ...........Appellant(s) Versus 1. MAXIVISION LASER CENTER PVT. LTD. 1-11-252/1A TO 1D, ALLADIN MANSION, 3RD STREET, BEGUMPET HYDERABAD-16 ...........Respondent(s) FIRST APPEAL NO. 196 OF 2013 (Against the Order dated 28/12/2012 in Complaint No. 50/2010 of the State Commission Andhra Pradesh) WITH
IA/1682/2013(Stay),IA/1683/2013(Condonation of delay) 1. MAXIVISION LASER CENTER PVT. LTD. REP. BY ITS MANAGING DIRECTOR, 1-11-252/1A TO 1D, ALLADIN MANSION, 3RD STREET, BEGUMPET, HYDERABAD ANDHRA PRADESH ...........Appellant(s) Versus 1. MS. PRASANNA LAKSHMI D/O. SRI V.T. RAJ, H . NO. 204, LOTUS FLORA, PRAKASH NAGAR, BEGUMPET HYDERABAD ANDHRA PRADESH ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT For the Appellant : In person. For the Respondent : Mrs. K. Radha Rao, Advocate.
Dated : 05 Apr 2019 ORDER Per Mrs. M. Shreesha, Member
Aggrieved by the order dated 28.12.2012 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (for short "the State Commission") in C.C. No. 50 of 2010, the Complainant has preferred First Appeal bearing No. 170 of 2013 and the Opposite Party, M/s Maxivision Laser Center Pvt. Ltd. (hereinafter referred to as "the Lasik Centre") preferred Appeal No.F.A.No.196 of 2013 u/s 19 of the Consumer Protection Act, 1986 (for short "the Act").
2. Briefly stated, the facts of the case are that the Complainant was suffering from short sight problems and used to take treatment from the Lasik Centre since 2001. Her family members also used to take treatment for their eyes from the said Lasik Centre. Due to their long association with the Doctors and ophthalmologists of the Lasik Centre, they developed good acquaintance with them. While so, it is stated that Dr. Ravi Shanker of the Lasik Centre suggested Lasik Surgery for the Complainant to be able to see well without using spectacles. He informed the Complainant that they had installed a brand new Lasik equipment imported from abroad and that he was well trained in Lasik Surgery. It is averred that the Complainant was not briefed about the risks involved in the Surgery and was only assured that the Surgery was a safe procedure and had no complications and was a bladeless Surgery. Believing Dr. Ravi Shanker, the Complainant agreed to undergo Lasik Surgery on 16.02.2008. Prior to the Surgery, a card was issued in the name of Dr. Satish Gupta. When the Complainant protested that the Surgery should be performed by Dr. Ravi Shanker as he is well-experienced in performing such kind of surgeries, she was told that that the Surgery would in fact be performed by Dr. Ravi Shanker himself. However, it was performed by Dr. Satish Gupta and not by Dr. Ravi Shanker. Immediately, after the surgery, Dr. Ravi Shanker saw here with anguish and tried to adjust the flaps of both the eyes. On 17.02.2008, the day after the Surgery, it being a Sunday, no Senior Doctors were available and a Junior Doctor explained her but did not mention the presence of microstraie though his facial expression had changed. On 22.02.2008, Dr. Ravi Shanker examined her, stopped the usage of FML and noted 'microstraie'. It is stated that post Surgery, Complainant had experienced loss of vision, both in clarity and quality and further suffered severe glare, contra sensitivity, hazy vision and light distortion. Dr. Ravi Shanker advised the Complainant to wait for three months for better results though he prescribed medication for only one month. The Complainant again visited the Lasik Centre and consulted Dr. Ravi Shanker on 29.02.2008, 08.03.2008 and 28.03.2008. Dr. Ravi Shanker tried various lenses but there was no improvement.
3. It is averred that the Complainant's vision did not improve even after three months. She then consulted Dr. Satish Agraharam of VRI Super Specialty Hospital, Hyderabad on 02.06.2008 who referred her to Dr. Millind Bhide of Hyderabad Eye Centre who examined her on 03.06.2008 and observed wrinkles in both her eyes and advised for another Surgery to stretch the flaps. He also informed her the risk involved in the Surgery and explained the procedure of performance of Lasik Surgery. She was also informed that there was a high risk of epithelial growth which may require recurrent surgeries and chances of clearing the wrinkles were remote at that point of time. He opined that correct Surgery ought to have been performed within two to seven days after the Surgery. Armed with the said information when the Complainant approached Dr. Satish Gupta he behaved harshly with her and told her that "he was not God" and "mistakes do happen." Devastated she once again consulted Dr. Satish Agraharam who referred her to Dr. Srinivas Rao of Darshan Eye Clinic at Chennai who on 10.07.2008 examined her and informed her that due to wrinkles in the corneal flaps there was loss in her vision and the vision acuity did not improve. He further opined that he was not sure whether there would be any improvement in vision and did not advice re-Surgery as it carried very high risk of infection. He told her that corrective Surgery should have been done immediately after the detection of wrinkles. It is pleaded that Dr. Ravi Shanker had noted wrinkles in the case sheet on 16.02.2008 and 22.02.2008 but he did not initiate any corrective steps. The winkles would be conspicuous to any expert, as the flaps were not properly positioned. It is further pleaded that the damage caused to her eyes was irreversible and she has to live with blurred and impaired vision all her life. It is pleaded that she is unable to see minute things which she could see prior to the Surgery. She is unable to read novels and use the computer even for a short duration due to double vision and redness of the eyes and her eyes water even when she reads newspaper for a short period. Her chances of a bright career and getting married are totally diminished. The Complainant issued a legal notice dated 26.11.2008 to the Lasik Centre but of no avail.
4. The Lasik Centre resisted the claim by filing their Written Version, stating that the Lasik Surgery involves raising hinged corneal flap and applying predetermined amount of laser. LASIK stands for Laser Insitu Kerotomileusis, through which process, they would raise from 90 to 140 microns of outer layer of cornea (a watchglass like structure in the dark part of the eye), which is called as 'FLAP'. The thin flap is hinged at the upper or nasal side so that it is not completely taken off. As a part of the procedure, the Flap is lifted and would be used for Eximer Laser to treat the power on the inner layer under the Flap that was created for changing the shape of cornea and correcting the individual power i.e. minus power, plus power and mixture of minus and plus power. That Dr. Kasu Prasad Reddy, who is the Promoter and Director of the Lasik Centre is the first Indian to have introduced first Lasik in England and India. It is pleaded that all Ophthalmologists are competent to do Lasik which is performed after explaining to the patient about the same and after obtaining the informed consent. Millions of people opt for undergoing the same and the success rate is 98 to 99 percentage. The Complainant was under the treatment of Dr. Satish Gupta and Dr. Ravi Shanker since 07.06.2011 and was closely acquainted with those Doctors. The Lasik Centre was having equipment for conducting Lasik Surgery. Dr. Satish Gupta counselled the Complainant qua the procedure involved in the Surgery and the related inherent risk such under and over cover correction. After obtaining the consent of the Complainant, Dr. Satish Gupta performed the Lasik Surgery on 16.02.2008 and on 17.02.2008 the Complainant was seen by Dr. Satish Gupta, her vision was very good (6/9). The Complainant was examined at various occasions after the Surgery. Last such examination was on 08.03.2008 and her vision was recorded as 6/9 right eye with a correction of = 0.75 Dsph and 6/9 uncorrected in left eye. The Flaps were found to be clear. She was advised to continue tear drops and was asked to come back for follow-up after 3 weeks. However, she did not turn up.
5. It was further pleaded that the Doctors of Lasik Centre had not assured 100% guarantee. It is axiomatic that every Surgery is associated with risk. Dr. Satish Gupta is a Senior Doctor with an experience of 38 years and Dr. Ravi Shanker is a Doctor with experience of 10 years. It was stated that Complainant did not request or suggest that Dr. Ravi Shanker should perform the Surgery. Had the Complainant opted for Dr. Ravi Shanker he would have performed the Surgery as both the Doctors work as a team. Throughout the Surgery, the Complainant was conscious and was talking by responding to Dr. Satish Gupta and she never raised any objection. As a routine measure, Dr. Ravi Shanker checked the Corneal Flaps on slip lamp after the Lasik procedure and cleaned the mucous with a sterile swab. It was also stated that Dr. Satish Gupta is only a visiting consultant. On 22.08.2008, the Complainant was asked to stop the FML and it was also observed that her vision was good in each eye. The Complainant did not visit the Lasik Centre or its Doctors on 28.03.2008. Folds/wrinkles are reset on the first post-operative day whereas microstriae are kept under observation as they settle in time with moulding of the cornea. The Doctors of Lasik Centre would have handled the problem if she would have come for proper follow up after three weeks. On 08.03.2008 no microstriae was observed by Dr. Ravi Shanker and the Complainant was requested to come after 3 months but she did not turn up. Had the microstriae been noticed in her right eye on 22.02.2008 the endorsement to that effect would have found place in the medical record. There was a small hyperopic shift, which was noted on 08.03.2008 as it is a regular practice to stop FML eye drops in such a case. It was also pleaded that Complainant was informed that even after undergoing Lasik Surgery she would require a small number for fine work. It was further pleaded that mucous formation can happen in any eye irrespective of the fact whether it is operated or non-operated and on the first post-operative day, if mucous is observed it is a routine practice to clean mucous on slit lamp for clear view of the flap edge and the flap itself. In the end it is stated that the claim of Rs. One Crore is exorbitant and without any basis and the State Commission referred the Complaint to Superintendent, S.D. Eye Hospital, Hyderabad to evaluate the same and report back as to whether there was negligence on the part of the Opposite Party and the Superintendent S.D. Eye Hospital, Hyderabad through his proceedings dated 22.03.2010 has informed that there was no negligence on the part of the Opposite Party.
6. The State Commission based on the evidence adduced allowed the Complaint in part directing the Lasik Centre to pay an amount of Rs.3 lakhs within one month from the date of receipt of copy of the order failing which the amount shall carry interest at 9% and also awarded costs of Rs.5,000/-. While directing so, the State Commission has observed as follows:
"75. A perusal of the aforementioned reports of different doctors and hospital would show that Dr.K.Srinivasa Rao of Darshan Eye Clinic, Chennai opined that there were wrinkles in the flap; The expert committee of Sarojini Devi Eye Hospital, Hyderabad shows Microstriae in left eye of the complainant; New Visions Laser Centre found Flap Stiae whereas the LV Prasad Eye Hospital has opined that there were vertical microstriae and decentered ablation in both eyes of the complainant.
76. The learned counsel for the opposite party-hospital has contended that the certificate was not issued by Dr.Srinivas Rao and it was not signed by him. The email dated 10.07.2008 does not contain any details as to who and when it was addressed. He has contended that when the Complainantwas present before him, there was no necessity for Dr.Sriinivas Rao to send Email to the complainant.
77. A combined reading of the reports of various doctors would establish presence of microstriae in the flap of the complainant. Except Dr.Milind Bhide all other doctors who examined and treated the Complainantsubsequent to Lasik in the opposite party -hospital are not Lasik surgeons. The Complainant's suffered reduced vision during post-Surgery period. Microstriae are presnt in the flap of one of the eyes of the complainant. The surgeon who performed the Lasik procedure upon the Complainanthas not exercised due and reasonable care during pre-operative, peri-operative and post-operative stages.
78. The Complainanthas claimed a sum of one crore on the premise that she was humiliated by the response from Dr.Satish Gupta whom she consulted after she was examined by Dr.Satish Agraharam and Dr.Milind Bhide and due to the negligent treatment of RW1 she suffered wrinkles which are the cause for dip in her vision and it is a permanent irreparable damage to her both eyes and she continued to experience visual symptoms like hazy vision, loss of contra-sensitivity, blurred vision and redness of eye. She has contended that apart from professional front, on personal front there is lingering sense of dejection , feeling of disability and haunting inferiority complex.
79. She has stated that she is unable to read as many lines before during the test and experience redness in eye and watering whenever she would work on computer or read newspaper for a short period of time and there had been great dip in her vision in clarity and quality. She has submitted that medically she is a victim of decentered ablation, wrinkles and associated visual symptoms and consequent to the Surgery, she could not continue with her job due to visual disability caused by the Surgery and affected her lifestyle.
80. It is contended on behalf of the opposite party that the Complainant claimed huge amount and she did not produce any evidence in support of her claim for such an amount. It is contended that the claim is speculative and despite specific objection by the opposite party -hospital, the Complainant has not adduced any evidence.
81. The Complainant has not produced any evidence to show that she used to earn `30,000/- per month and she was working as HRD manager. There is no evidence brought on record that as a result of consequence of the Lasik Surgery, the Complainant could not read with such speed as she used to do prior to Surgery. The Complainant has not reported the blurred vision, contra sensitivity etc., to any of the doctors who subsequently treated her. The Complainant has not examined any of the doctors in support of her contention that she suffered from such symptoms as a consequence of her undergoing Lasik Procedure.
82. The opposite party-hospital without obtaining informed consent of the Complainant performed Lasik procedure upon her and in this regard, the submission of the Complainant attains much significance that had she been properly informed about the risk and associated implications, she would not have agreed to undergo Lasik. Performance of the Surgery without an informed consent amounts to unauthorized invasion and interference of the body of the complainant. The Complainant has submitted that consequent to the Surgery, she was devastated, emotionally and monetarily due to the trauma she had undergone and she lost perfect vision and the very meaning of her life has changed to worse since the time the Surgery was performed by the doctors of the opposite party-hospital.
83. The Complainant has undergone trauma not only with the failure of the treatment administered at the opposite party-hospital, she is humiliated with the response from Dr. Satish Gupta When she made enquiry after consulting Dr. Satish Agraharam and Dr. Milind Bhide. The Complainant has stated that:-
"I submit that armed with the information, I approached the opposite party and questioned the doctors there. There was now a marked change in the attitude of the doctors and the response from them was also not only harsh but also irresponsible. I demanded to know why the doctor of my choice was not allowed to perform the Lasik Surgery to which Dr.Satish Gupta became philosophical and said "whatever has to happen, happens and they are not gods and errors do happen" I was shocked by the response and level of professionalism exhibited by the opposite party's doctors I submit that not knowing what to do I was made to go from pillar to post and again consulted Dr.Saish Agraharam, who advised me to meet Dr.Srinivas K.Rao from Darshan Eye Clinic at Chennai. I met the said doctor on 10.7.2008 who examined me and reported that there were many wrinkles in the corneal flaps of both the eyes that led to loss in vision and the vision acuity did not improve RGP-CL"
84. Thus, the Complainant was humiliated by the response from Dr.Satish Gupta that she has to suffer for, "whatever has to happen, happen". The opposite party has neglected to administer proper treatment to the Complainant and even after undergoing Lasik, she has to wear contact lenses as seen from the prescription of the L VPrasad Eye Hospital. Therefore, the Complainant is entitled to reasonable compensation against the huge compensation she claimed. The learned counsel for the opposite party-hospital has contended that the Complainant has not produced any material worth its credence to support the huge damages she claimed for.
85.The Hon'ble Supreme Court in "State of Gujarath vs Shantilal Mangaldas" AIR 1969 SC 634. held the compensation to mean".....In ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation is to be determined and given . If it were to be in terms of money along, the expression 'paid' would have been more appropriate".
86. The Supreme Court held that the compensation to be awarded is to be fair and reasonable. In "Charan Singh vs Healing Touch Hospital and others" 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the change it brings in the attitude of the service provider.
87. The Court held "While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge".
88. In the light of the facts of the case and on application of the ratio laid in the aforementioned decisions, this Commission quantifies the amount to be paid as compensation to the Complainant at ₹3,00,000/-(Rupees Three lakh only).
89. In the result, the Complaint is allowed directing the opposite party to pay an amount of ₹3 lakh (Rupees three lakh only) within one month from the date of receipt of the order failing which the opposite party shall pay interest @ 9% p.a. on the amount. The costs of the proceedings quantified at ₹5,000/-."
7. Aggrieved by the said order, the Complainant preferred F.A. No.170 of 2013 and the Lasik Centre preferred F.A.No.196 of 2013 before this Commission.
8. The aspect of Medical Negligence has to be decided on the touchstone of the law on this subject as first laid down in a decision of Queens Bench in a leading case of Bolam Vs. Friern Hospital Management Committee [1957] 1 WLR 582 = (1957) 2 All ER 118 (QBD). McNair J., in his opinion, explained the law in the following words:-
"Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill ... It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
9. The aforesaid principle of law was reiterated by Bingham L.J. in his speech in Eckersley vs. Binnie (1988) 18 Con LR 1 in the following words:-
"From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet."
10. The Hon'ble Supreme Court in Dr. S.K. Jhunjhunwala Vs. Mrs. Dhanwanti Kumari & Anr. (2019) 2 SCC 282, further observed this principle of law regarding Medical Negligence. Judged by this standard, a professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.
11. It was held that the standard to be applied for judging whether the person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. His Lordship quoted with approval the subtle observations of Lord Denning made in Hucks vs. Cold (1968) 118 New LJ 469, namely, "a medical practitioner was not be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field." Hence the issue whether the Treating Doctor was negligent or not is to be tested on the touchstone of the afore-noted Principle.
12. Heard both sides at length. The Complainant was present in person and was assisted by Learned Counsel Mr. Katta Laxmi Prasad. It is the Complainant's case that both the Doctors Ravi Shanker and Satish Gupta advised her to undergo the Surgery without informing her of the inherent risks and she was given a rosy picture and was assured that she would have clear vision within two days of the Surgery without having to wear glasses. On 09.02.2007, the Complainant's visual acuity was 6/6 in both the eyes as can be seen in Ex.A1. Admittedly, the pre-operative tests were conducted by the Lasik Centre namely general examination, ORB scan and Aberrometry Test. The Complainant in person vehemently contended that right from the beginning she had requested for Doctor of her choice i.e., she wanted Dr.Ravi Shanker should perform the Surgery though her card was registered under the care of Dr.Satish Gupta, but on 16.02.2008, when the Surgery was planned the consent letter which she had signed did not mention the Surgeon's name, specific name of the Surgery or the inherent potential risks. Further, in the operation theatre since Dr.Ravishanker was also present she was under the impression he was performing the Surgery but in the middle of the Surgery Dr.Satish Gupta entered the theatre and performed the Surgery. She submitted that she did not utter a single word as it was not prudent to react at that point of time when the Surgery was being performed on both her eyes. Immediately after the Surgery, the Complainant was taken to Dr.Ravi Shanker's cabin where he had asked his assistant to fetch a sterilized swab and was trying to adjust the Flaps in both the eyes.
13. The material on record shows that the Complainant was advised to use FML drops for one month and was asked to come for review on 17.01.2008 which was the first post-operative day. The Complainant submitted that it was a Sunday and a Junior Doctor was available on a routine duty who examined her eyes and asked her to visit after one month. The Complainant submitted that between 07.02.2008 and 22.02.2008 she suffered loss in vision both in clarity and quality, blurred vision, light distortion and her vision was worse after the Surgery. The material on record shows that the Complainant visited the Doctor again on 22.02.2008 and after six days of the Surgery, both Dr. Satish Gupta and Dr.Ravi Shanker examined her eyes. She complained of blurred vision, redness of the eye and reduction in her vision. She was advised to try various lenses but there was no improvement.
14. The prescription dated 22.02.2008 evidences the presence of microstriae. Thereafter when she went for review on 29.02.2008, there is no noting of any observation or advice of any tests. On 08.03.2008, there is a noting that the patient was unhappy with the visual outcome. On 28.03.2008 she was asked to come for a review but the prescription does not show any noting. On a pointed query from the bench, the learned counsel for the Lasik Centre submitted that the Complainant did not turn up for review after 28.03.2008 and therefore her condition could not be rectified by the Treating Doctor. The party in person submitted that she did not go for review after 02.06.2008 as her condition did not improve despite repeated visits and complaints of blurred vision, dry eyes and microstriae.
15. It was submitted that between 28.03.2008 and 02.06.2008, she made several visits to the Treating Doctor but there was no improvement. However, the prescription is silent subsequent to 28.03.2008.
16. The material on record shows that on 02.06.2008, the Complainant visited Dr.Satish Agraharam of VRI Super Specialty Eye Hospital who informed her that she had to continue using Tears Natural Eye Drops for her dry eye problem and figurative description of wrinkles in the Flaps of both eyes and noted so in the prescription. Ex.A2 which shows this prescription also evidences that the vision was 6/12 in both the eyes. The said Doctor referred her to Dr.Milind Bhide of Hyderabad Eye Centre. A perusal of the prescription of Dr.Milind Bhide dated 03.06.2008 shows her vision to be 6.12; the present of microstriae and a specific noting that the status was Post Lasik. Condition of dryness and blurriness in the vision was also noted. It is the Complainant's case that he had informed her that chances of clearing the striae was also remote and that corrective Surgery ought to have been performed within 48 hours or maximum a week.
17. As against this submission, the learned counsel appearing for the Lasik Centre vehemently contended that the entire information about the Lasik and the inherent risks involved were informed to the Complainant and drew our attention to the consent form which reads as hereunder:
"CONSENT FORM This information is provided so that you can make an informed consent decision about the use of Excimer laser to correct or reduce short sight, long sight and astigmatism. One alternative to this is Radial Keratotomy or another alternative is to continue to wear corrective lenses.
In giving my permission for Surgery, I declare that I am over 18 and I understand the following information.
01) This particular Surgery consists of reshaping the cornea by applying the laser after microSurgery.
02) The aim of the Surgery is to reduce the prescription. This is the only available treatment for high myopia and vision has improved in very one and almost everyone achieved freedom from glasses and contact lenses.
03) Like any other operation, infection is a rare risk and treatable with antibiotics.
04) I also understand that if I presently wear bifocals or reading glasses, I may still need a reading prescription after this Surgical procedure.
05) After Surgery, I may experience sensitivity to light, glare and variation of vision, which disappear in time. Final outcome is dependent on individual healing process of each patient.
06) If I am myopic, my eye is subject to such difficulties, as retinal detachment and other incidents not related in any way to laser treatment.
In giving my permission for laser treatment, I declare that it is impossible for my eye specialist to inform me of every possible complication that may occur and my specialist has answered all my questions to my satisfaction.
I give my permission for medical data concerning my operation and subsequent treatment to be released to investigators, physicians and responsible authorities demonstrating a need for such information, I have no objection in educating others who would like to have this treatment.
I have not been pressurized in any way to have this treatment and I have been given ample time to take this decision freely.
I wish to have LASIK treatment performed on my both eyes for MYOPIA WITH ASTIGMATISM"
18. A brief perusal of the Consent Form does not anywhere evidence that the Complainant may suffer from common complications such as dry eyes or any other complications. We are of the considered view that the aforementioned Consent Form cannot be said to be in consonance with the ratio which the Hon'ble Supreme Court has laid down in Samira Kohli Vs. Dr. Prabha Manchanda (2008) 2 SCC 1. In the said case the Hon'ble Supreme Court has summarized the principles of consent in para 4, which is reproduced below:-
"49. we may now summarise principles relating to consent as follows:
A doctor has to seek and secure the consent of the patient before commencing a "treatment" (the term "treatment" includes surgery also).The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to."
(Emphasis supplied) The court also observed in para 23 as:
"23. It is quite possible that if the patient been conscious, and informed about the need for the additional procedure, the patient might have agreed to it. It may be that the additional procedure is beneficial and in the interests of the patient. It may be that postponement of the additional procedure (say removal of an organ) may require another surgery, whereas removal of the affected organ during the initial diagnostic or exploratory surgery would save the patient from the pain and cost of a second operation. Howsoever practical or convenient the reasons may be, they are not relevant. What is relevant and of importance is the inviolable nature of the patient's right in regard to his body and his right to decide whether he should undergo the particular treatment or surgery or not. Therefore at the risk of repetition, we may add that unless the unauthorized additional or further procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable (as contrasted from being merely inconvenient) to delay the further procedure until the patient regains consciousness and takes a decision, a doctor cannot perform such procedure without the consent of the patient."
19. An Informed Consent ought to have been taken from the Complainant with all the common complications which may arise after Lasik even the issue of 'Dry Eyes' which admittedly is a common complication, has not been mentioned in the consent form to have given an opportunity to the Complainant to exercise her choice of going into the Lasik Surgery or not. Therefore viewed from the ratio laid down by the Hon'ble Supreme Court in the aforementioned judgment, we are of the considered opinion that the Lasik Centre is deficient in service in not taking 'Informed Consent' from the Complainant. In today's day and age, Lasik Surgeries are being advertised to be extremely simple and uncomplicated. We are of the considered view that Medical Professionals involved in performing Lasik Surgeries should at least explain the common complications like Dry Eyes, for example, prior to the performance of the Surgery.
20. Now we address ourselves to the contention of the Complainant as to whether microstriae decentred ablation occurred on account of lasik Surgery and if so, whether any advice was given by the Treating Doctor and further if corrective Surgery ought to have performed within a few hours of the performance of the Surgery.
21. To reiterate, the first prescription given by the Treating Doctor shows the presence of microstriae on 22.02.2008 itself. Therefore it is evidenced that microstriae had occurred Post Lasik Surgery. It is also significant to mention that after microstriae was mentioned in the prescription on 22.02.2008, the only advice given was the stoppage of FML drops though the patient appeared for review on 29.02.2008 and on 08.03.2008 and complained of dry eyes, blurred vision etc. The prognosis was not explained nor noted in the Prescription. There was no proper advice given for correction of the post-operative complications either by the Treating Doctor or the Lasik Centre.
22. The party in person submitted that on 09.07.2008 she again visited Dr.Satish Agraharam who referred her to consult Dr.Srinivas K Rao of Darshan Eye Clinic, who was a senior consultant at Sankara Netralaya for 15 years and has vast experience in Lasik Surgery. As can be seen from the prescription of Dr.K.Srinivas K Rao (Ex.A4) dated 10.07.2008, the Complainant suffered from wrinkles. For better understanding of the case, the said prescription is reproduced hereunder:
"Ms. V Prasanna Lakshmi, a 27 year old lady was examined on 09.07.2008, she complained of blurred vision in both eyes following LASIK on 16 February, 2008. He records revealed a refractive error of -2.75-2.0x180, and -3.0-1.0x180 in the right and left eyes respectively, prior to the procedure. There was a history of hypothyroidism, but she was otherwise in good general health.
On examination, her unaided visual acuity was 20/80 in both eyes, and did not improve further with refraction. Eyes were orthophoric and extraocular movements were full. Slit lamp evaluation revealed wrinkles in the flap in both eyes, more in the left eye. Fundus exam was normal.
Visual acuity did not improve with RGP CL. The pros and cons of flap stretching to remove the wrinkles were discussed with her."
(Emphasis supplied)
23. We are of the considered view that this is a fit case to place reliance on the decision of the Hon'ble Supreme Court in Smt. Savita Garg Vs. Director, National Heart Institute (2004) 8 SCC 56, in which the Supreme Court has laid down that once a prima facie case is observed, the onus shifts on the Hospital and the Treating Doctor to explain as to how a particular condition has occurred and explain the treatment that was rendered to her. In the instant case, the reason for occurrence of microstriae has not been explained and specifically there is no plea that it is a common complication. Then this post-operative complication ought to have been dealt with 'due care and caution'.
24. At this juncture, we find it a fit case to place reliance on the judgement of the Hon'ble Supreme Court in Arun Kumar Manglik Vs. Chirayu Health and Medicare Private Ltd. & Anr. (Civil Appeal Nos. 227-228 of 2019, decided on 09.01.2019), in which the Hon'ble Apex court while, observing duty of care to be adopted by the medical professional and also noted about 'patient centric approach'. For better understanding of the observation made, the relevant paras are being reproduced hereunder:
"39. In Bolitho v City and Hackney Health Authority, the House of Lords held that the course adopted by the medical practitioner must stand a test to reason:
"...in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. stated that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men." Later, at p. 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." Again, in the passage which I have cited from Maynard's case, Lord Scarman refers to a "respectable" body of professional opinion. The use of these adjectives--responsible, reasonable and respectable--all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."
(Emphasis supplied) Granting due deference to the profession of medical practitioners, Lord Browne Wilkinson held that it is only in a 'rare case' when professional opinion is not capable of 'withstanding logical analysis', that the judge may hold that it is not reasonable or responsible:
"These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.
I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed."
(Emphasis supplied)
40. Closer home, in V Kishan Rao v Nikhil Super Speciality Hospital,14 a two judge Bench of this Court highlighted the shortcomings of the Bolam test:
"19. Even though Bolam test was accepted by this Court as providing the standard norms in cases of medical negligence, in the country of its origin, it is questioned on various grounds. It has been found that the inherent danger in Bolam test is that if the courts defer too readily to expert evidence medical standards would obviously decline. Michael Jones in his treatise on Medical Negligence (Sweet and Maxwell), 4th Edn., 2008 criticised the Bolam test as it opts for the lowest common denominator. The learned author noted that opinion was gaining ground in England that Bolam test should be restricted to those cases where an adverse result follows a course of treatment which has been intentional and has been shown to benefit other patients previously. This should not be extended to certain types of medical accidents merely on the basis of how common they are. It is felt "to do this would set us on the slippery slope of excusing carelessness when it happens often enough" (see Michael Jones on Medical Negligence, para 3-039 at p. 246).
24. With the coming into effect of the Human Rights Act, 1998 from 210-2000 in England, the State's obligations under the European Convention on Human Rights (ECHR) are justiciable in the domestic courts of England. Article 2 of the Human Rights Act, 1998 reads as under: "Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."
25. Even though Bolam test "has not been uprooted" it has come under some criticism as has been noted in Jackson & Powell on Professional Negligence (Sweet and Maxwell), 5th Edn., 2002. The learned authors have noted (see para 7-047 at p. 200 in Professional Negligence) that there is an argument to the effect that Bolam test is inconsistent with the right to life unless the domestic courts construe that the requirement to take reasonable care is equivalent with the requirement of making adequate provision for medical care. In the context of such jurisprudential thinking in England, time has come for this Court also to reconsider the parameters set down in Bolam test as a guide to decide cases on medical negligence and specially in view of Article 21 of our Constitution which encompasses within its guarantee, a right to medical treatment and medical care."
(Emphasis supplied)
41. Our law must take into account advances in medical science and ensure that a patient-centric approach is adopted. The standard of care as enunciated in the Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts. Significantly, the standard adopted by the three-judge bench of this Court in Jacob Matthew includes the requirement that the course adopted by the medical professional be consistent with "general and approved practice" and we are bound by this decision.
42. In adopting a standard of care, Indian courts must be conscious of the fact that a large number of hospitals and medical units in our country, especially in rural areas, do not have access to latest technology and medical equipment. A two judge bench of this Court in Martin F D'Souza v Mohd. Ishfaq held thus:
"37. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time."
43. In the practice of medicine, there could be varying approaches to treatment. There can be a genuine difference of opinion. However, while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. This is to avoid a situation where doctors resort to 'defensive medicine' to avoid claims of negligence, often to the detriment of the patient. Hence, in a specific case where unreasonableness in professional conduct has been proven with regard to the circumstances of that case, a professional cannot escape liability for medical evidence merely by relying on a body of professional opinion."
25. Thereafter the Complainant got issued a legal notice dated 26.11.2008 for which the Opposite Party replied through letter dated 05.01.2009 stating that had the Complainant come back for proper review the problem could have been corrected.
26. A brief perusal of the proceedings before the State Commission shows that the Complainant was asked to present herself for evaluation at Sarojini Devi Eye Hospital on 22.03.2010. The opinion of the Expert Committee is reproduced as hereunder.
"Right Eye shows a circular scar 1 mm inside the limbus. Cornea shows microstriae under very high magnification. Rest of the Cornea is normal. Left eye Cornea is normal. Both eyes anterior segment normal, pupils active. Both eyes fundus normal.
Keratometry shows regular mires with a reading of right eye -43.00/43.75 diopters and left eye 43.00/44.50 diopters. Vision by Dasturs Chart is 6/6 partial.
Based on the above findings the Committee feels the Ocular findings don't suggest any abnormality in the eyes which can cause fall of vision.
Hence findings in the eyes do not suggest any negligence on the part of the treating doctor."
27. When the prescription given by all the subsequent Doctors showed 6/12 partial vision, it is not understood as to how the afore-mentioned Hospital has noted 6/6 partial. These appears to be prima facie an error in the recording of the vision power. While so, on 04.05.2010 the Complainant approached L.V.Prasad Eye Institute where she was informed about her dip in her vision test and advised to consult Dr.Visram, who stated that the complications were caused Post Lasik and noted that there was Decentered Ablation and also that her vision was affected.
28. The Complainant argued that the laser procedure was not properly centered, which is called decentered ablation and Laser ablations that are off-center by as little as 0.5 mm can cause visual symptoms including glare and halos, loss of contract sensitivity, ghost images and blurred vision and in the present case the ablations is of 3.61 mm. Glasses and soft contact lenses cannot correct these visual aberrations. For better understanding of microstriae and Decentered Ablation the relevant portion of the medical literature is reproduced hereunder:-
"Detection of striae While the causes and predictors may prepare the LASIK surgeon for what to expect postoperatively, early detection of striae in any patient is still crucial. Flap striae can occur within the first hour after LASIK, so refractive surgeons should take measures to detect striae as soon as possible. The first step is to examine the patient at the 'slit-lamp', a lighted microscope that allows the doctor to examine your eye under high magnification. A corneal topography should also be performed as part of every postoperative check-up. If visual acuity is not near 20/20, if it is worse than preoperative acuity, or if astigmatism is present, flap striae or wrinkling may be the cause.
The presence of wrinkling or striae must then be confirmed to indicate if flap manipulation is necessary. The traditional method is to dilate the pupils and examine the cornea under a slit-lamp.
A new method of assessing the presence of striae is examining the tear film after instilling fluorescein in the patient's eye. The tear film created after blinking is examined at the slitlamp with a cobalt filter. Uneven pooling of the tear film after blinking is an indication of flap striae.
Early detection of striae is crucial for successful treatment. Older people, high myopes, those with epithelial defects, and those with eye trauma tend to get striae. Patients who have thin, torn or incorrectly sized flaps, those who receive nasal instead of superior hinged flaps, or those who have flaps that are excessively manipulated also tend to get striae.
(Emphasis Supplied) Treating striae There is no one universal method for treating striae. Those striae that occur in the visual axis can be approached by refractive surgeons in many ways depending on the type and severity, as well as the amount of time they took to defect. Methods such as re-floating the flap, using hypotonic solution or collagen punctal plugs, ironing out the wrinkles with a special instrument, removing the epithelium, suturing the flap, and using a bandage contact lens are the more common measures that refractive surgeons take to remove striae.
Reticular micro-striae-reticular micro-striae need to be treated with a bandage contact lens, punctal plugs, or lubrication medicine. If these striae still persist after two weeks of treatment, then they should be treated like the other types of striae.
"Decentered Ablation A decentered ablation is an infrequent complication of LASIK eye surgery that occurs when the laser treatment is not properly centered over the pupil. Laser ablations that are off-center by as little as 0.5mm can cause visual symptoms, including glare and halos, ghost images and blurred vision.
This problem can arise if the suction ring that attaches the microkeratome or femtosecond laser to the eye for creating the flap is not aligned properly over the center of the pupil. Another cause is something called pupil centroid shift, which refers to a change in the lateral or vertical position of the pupil as it dilates or constricts. It is important for the surgeon to compensate for centroid shifts to avoid decentered ablations."
(Emphasis Supplied)
29. On 07.06.2010, the Complainant consulted Dr.Syed Maaz Mohiuddin (MS OSM) DNB FRCS (Glassglow) FLVPEI from New Vison Laser Centre Hyderabad who stated that her vision acuity was 20/100 in both eyes and specifically noted the presence of flapstriae. From the afore-noted prescriptions, it is safely concluded that microstriae occurred only because of Post Lasik Surgery. The medical literature also confirms that Ablation can cause further complications which in the instant case shows 3.61 mm whereas the standard ablation cannot be more than 0.5mm.
30. Though the learned counsel for the Lasik Centre vehemently contended that the State Commission has erred in not relying on the opinion given by the Expert Committee, the fact remains that the Expert Committee did not address itself to the reason for the presence of microstriae or decentred ablation and also did not give any conclusive finding regarding the corrective steps to be taken for eliminating the same. The Hon'ble Apex Court in V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr. (2010) 5 SCC 513 has held that expert opinion is required only when a case is complicated enough warranting expert opinion, or facts of a case are such that Consumer Fora cannot resolve the issue without the assistance of an expert.
For all the afore-noted reasons, we find this to be a fit case to rely on the report given by LV Prasad Eye Institute which reads as follows:
Ms.Vellori Prasanna Lakshmi, a 28 years old lady presented to us on 04/05/2010 for regular check up. She had been using glasses 15 yeas (present using glasses for 3 years old). She had undergone lasik in both eyes for 3 years ago elsewhere. There was no other significant ocular or systemic history.
On examination here, her visual acuity was 20/80 in the right eye and 20/64 in the left eye. Near vision was N6 in both eyes. Intraocular pressure was 12 and 13 mm of Hg in the right eye and left eye respectively. She was orthophoric and ocular movements were full. Slip lamp examination of the lids were flat, conjunctiva was quiet, cornea showed presence of linear vertical microstriae, in the flap, aneterior chamber was deep and quiet, pupil was round, regular and reacting and lens was clear in both eyes. Dilated funds examination was within normal limits in both eyes with cup disc ratio of 0.3:1 with healthy neuroretinal rim in the right eye and no view in the left eye. Orbscan showed sim K's maximum 43.6D @ 93o and minium 42.2D @ 3o with corneal thickness of 527 microns in the right eye and sim K's maximum 43.5D @ 82O minium 42.3D @ 172O with corneal thickness of 545 microns in the left eye. Aberrometry revealed total HOA of 3.61mm with 5mm WF diameter in the left eye and unreliable data in the right eye.
Based on the above clinical evaluation, a diagnosis of status post lasik? Decentered ablation in both eyes was made. She was asked to review on 07/05/2010 withy Dr.VS. Repeat Orb scan sim K's maximum 43.5D@ 82O and minimum 42.3D @ 172O with corneal thickness of 545 microns in the left eye. Patient was advised contact lens trial and appointment was given for the same".
(Emphasis supplied)
31. Be that as it may, in the deposition of the Treating Doctor it is clearly stated that on 16.02.2008 Dr.Ravi Shanker examined the Complainant immediately after the Surgery and that it is true that folds and wrinkles are reset on the first post-operative day. He also deposed that the Surgery of the Complainant was performed on 16.02.2008 and that he had examined her for the first time on 22.02.2008 and that on 17.02.2008 which is the first post-operative day. It was stated by the Treating Doctor that microstraie and wrinkles are two different things. Folds/wrinkles are reset on the 1st post-operative day, whereas microstriae are kept under observation as they settled in time as the cornea is moulding. Dr. Ravi Shanker and he noticed the microstriae on 22.02.2008 and that too only in the right eye and did not notice any microstriae subsequently and thus the allegations made to this effect are wholly misconceived and false. The Treating Doctor in his Written Arguments stated that the unsigned prescription of Dr. Srinivas Rao cannot be relied upon; that Dr. Syed Mahuiddin's prescription does not contain any details of when he had examined the Patient and that qualifications of Dr. Vishram are not known.
32. It is the contention of the Treating Doctor that microstriae and wrinkles are two different things and that only microstriae was observed by them post operatively. The subsequent medical treatment record of the Patient evidences that she ran from pillar to post to Dr. Milind Bhide, Darshan Eye Clinic, Prema Eye Care Centre, New Vision Laser Eye Centre and to L.V. Prasad Eye Institute all which have confirmed the presence of microstriae post Lasik. He further deposed that decentered ablations could be due to cornea not being centered properly and that corneal folds, wrinkles, straie, diplopia, decentered ablation are surgical complications. It is also an admitted fact that Dr.Ravi Shanker noted microstriae in the right eye. It is the case of the Treating Doctor that microstraie normally disappears over a period of time and therefore no concrete steps were taken to perform any corrective Surgery. This view was not observed by any of the subsequent treatment record of the Ophthalmologist whom the Patient had consulted. In fact, Ex. A6, the prescription of New Vision Laser Center specifies Plan "Better no intervention or Re-evaluate ± Re-treat ± Flap stretch ± Sutures. The Medical literature cited emphasises that 'early detection of striae is crucial for successful treatment'. The medical record of the Lasik Centre which we place reliance on, in case of medical negligence, does not anywhere state any specific advice given to the Patient to correct this post-operative complication.
33. If indeed it could be rectified, there are no substantial reasons as to why the post-operative complication could not be rectified even by the Doctors whom she had consulted subsequently. In fact, her acuity vision was worse off after the Lasik, having fallen to 20/80 and 20/64. The medical literature and the Prescription of L.V. Prasad Eye Institute depicts "decentred ablation post Lasik." The Medical literature shows that " Decentred Ablation is an Infrequent Complication of Lasik Surgery which occurs when the Lasik treatment is not properly centred over the pupil. The Post Lasik complications which occurred were neither explained to the Patient nor were the requisite steps taken to educate the Patient about the prognosis, to enable her to exercise her choice of opting for any line of treatment which perhaps would rectify the situation. The Treating Doctor not only kept her in the dark about the treatment for microstriae and the prognosis thereof, but also did not take reasonable care to avoid decentred ablation. The Hon'ble Supreme Court in Laxman Balakrishna Joshi Vs. Trimbamk Bapu Godble, 1969 AIR 128, has defined the duty of care as under:-
duty of care in deciding whether to undertake the case duty of care in deciding what treatment to give duty of care in the administration of that treatment.
34. We are of the considered view that in the instant case the Treating Doctor has not administered the 'duty of care' as defined by law with respect to adhering to the standards of normal medical parlance.
35. For all these afore-noted reasons, the deposition of the Treating Doctor read together with the prescriptions, the continuous post treatment undergone by the Complainant in an attempt to correct the complication, together with the Medical Report of LV Prasad Eye Institute which specifically mentions that her visual acuity has fallen to 20/80 in the right eye and 20/64 in the left eye, we are of the considered view that there was negligence on behalf of the Lasik Centre and therefore we do not find any illegality or infirmity in the order of the State Commission.
36. For all the afore-noted reasons, F.A.No.196 of 2013 preferred by the Lasik Centre and the Treating Doctor is dismissed.
37. Now we address ourselves to the Appeal preferred by the Complainant for enhancement. The Complainant who was present in person with her father and the Learned Advocate submitted that she was aged 31 years old and is a post graduate in MBA, Osmania University and passed in the division of First Class and was earning Rs.30,000/- as monthly salary working in a Private Firm. The Certificate of her work experience is enclosed. It is seen from the record that she has a degree in Genetics and was a specialist in Finance and systems in MBA. We find force in her contention that her marriage prospects have been reduced and also her physical capacity to work, on account of her reduced visual acuity as noted in the report given by the LV Prasad Eye Institute. The medical treatment on record specifies that her condition of depletion cannot be further improved or corrected. It has undoubtedly affected her professional career and also her personal life. It is submitted that this incident had happened at a very young age of 28 years. Even if there was 10% hike in her salary per month she would have earned Rs.43,923/- per month and the Complainant has calculated the loss from 2008 at Rs.21,27,836/- and from 2013 onwards till she attained the age of 65 which was more than double the same. Taking into consideration that the Complainant's eyes have been effected permanently leading to life management stress issues, feeling of disability, mental trauma, personal degradation, loss of opportunities with respect to marriage and loss of a promising future, we find it a fit case to place reliance on the ratio laid down by the Hon'ble Supreme Court in V. Krishnakumar Vs. State of Tamil Nadu & Ors. (2015) 9 SCC 388. In this case, the Apex Court has observed as hereunder:-
" Quantification of Compensation
17. The principle of awarding compensation that can be safely relied on is restitution in integrum. This principle has been recognized and relied on in Malay Kumar Ganguly vs. Sukumar Mukhejee, (2009) 9 SCC 221 and in Balram Prasad's case (supra), in the following passage from the latter:-
"170. Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitution in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone v. Rawyards Coal Co.).
An application of this principle is that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event."
38. The agony caused by the disability on account of this event in the Complainant's life cannot undermined. We also find it a fit case to rely on the judgement of the Hon'ble Supreme Court in Shilaben Ashwinkumar Rana Vs. Bhavin K. shah & Anr. (Civil Appeal No. 1442 of 2019, decided on 04.02.2019), in which the Hon'ble Apex Court has opined that while awarding compensation, the distress caused should be taken into consideration. In Nizam's Institute of Medical Sciences Vs. Prasanth S. Dhananka, (2009) 6 SCC 1, a three Judge Bench of the Hon'ble Supreme Court emphasized that cases involving disability are in many respects even more tragic than cases of death, particularly where the disability is of a nature involving a life long condition of despair and helplessness.
39. In the instant case the Complainant was working and had contributed to the family income and her salary certificate evidences the same. In assessing the amount of compensation, we have been guided by the principle which has been laid down in Lata Wadhwa & Ors vs State Of Bihar & Ors., (2001) 8 SCC 197 and in National Insurance Company Ltd. v Pranay Sethi [2017 (13) SCALE 12], with suitable modifications in a case involving medical negligence.
40. Keeping in view the principle laid down by the Hon'ble Apex Court in V. Krishnakumar (supra) and also the afore-noted reasons, we are of the considered view that it is a fit case to enhance the compensation to ₹50 lakhs.
41. As regarding the Complainant's argument that she specifically chose Dr. Ravi Shanker but Dr. Satish Gupta, who is not an experienced Lasik Surgeon has performed the operation, we are of the view that this Commission shall defer from making any observations with respect to whether a Corneal Surgeon can undertake a Lasik Surgery or not. We do not wish to comment on the qualification or otherwise of the Treating Doctor.
42. In the result, F.A.No.170 of 2013 is allowed directing the Lasik Centre to pay ₹50 lakhs to the Complainant within four weeks from the date of receipt of a copy of the order, failing which, the amount shall attract interest at 9% per annum from the date of filing of the Complaint till the date of realization. We also award costs of ₹25,000/-.
43. Vide order dated 12.04.2013 in First Appeal No. 196 of 2013, this Commission while ordering stay of the impugned order directed Lasik Centre to deposit 50% of the amount awarded by the State Commission. Needless to add, the deposited amount stands released to the Complainant along with interest accrued, and the same shall stand adjusted from the decretal amount. The statutory amount deposited in First Appeal No. 196 of 2013 stands transferred to Consumer Legal Aid Account of this Commission.
......................J R.K. AGRAWAL PRESIDENT