National Consumer Disputes Redressal
Dr. Vittal Rao vs Anumula Vijayalaxmi on 5 February, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2304 OF 2017 (Against the Order dated 25/04/2017 in Appeal No. 219/2015 of the State Commission Andhra Pradesh) 1. DR. VITTAL RAO CONSULTING OPHTHALMOLOGIST, JAGADAMBA HOSPITALS, H.NO. 1-1-380/3, GANDHI NAGAR, HYDERABAD-500080 TELANGANA ...........Petitioner(s) Versus 1. ANUMULA VIJAYALAXMI W/O. ANUMULA RAMAMOORTHY, RLY. QR. NO. 368/12, RED HILLS, NAMPALLY HYDERABAD TELANGANA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Petitioner : Mr. D. Devender Rao, Advocate. For the Respondent : Mr. A. Naveen Kumar, Advocate.
Dated : 05 Feb 2019 ORDER Per Mrs. M. Shreesha, Member
Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 25.04.2017 in FA No. 219 of 2015 against CC No.1060 of 2010 passed by the Telangana State Disputes Redressal Commission, Hyderabad (for short "the State Commission"). By the impugned order, the State Commission has dismissed the Appeal preferred by Dr. Vital Rao (hereinafter referred to as "the Treating Doctor") and concurred with the findings of the District Consumer Disputes Redressal Forum-III, Hyderabad (for short "the District Forum").
2. The brief facts as stated in the Complaint are that the Complainant on 23.09.2008 approached the Treating Doctor for poor vision and cataract treatment of the left eye. After examining the Complainant, the Treating Doctor prescribed certain medicines but there was no improvement. It was averred that she had consulted the Treating Doctor again on 01.10.2008, 03.10.2008 and 10.10.2008 by staying at Hyderabad and used the medicine as prescribed by him. As there was no improvement as per the advice of the Treating Doctor she got herself admitted in Jagdamba Hospital, being run by the Treating Doctor on 18.02.2009 and the Treating Doctor conducted the cataract operation on 19.02.2009 and charged a sum of Rs. 15,060/- for the same vide Bill No. 2807. She was discharged by the Treating Doctor on 19.02.2009 itself and also prescribed certain medicines to her. However, in spite of using the medicines as prescribed, there was no improvement in the eye sight of the Complainant and even the slight vision, which she had, was lost. On 21.02.2009, she once again visited the Treating Doctor who reviewed her on 24.02.2009, 06.03.2009, 17.03.2009, 19.03.2009, 07.04.2009, 29.04.2009, 25.04.2009 and 18.08.2009 but there was no improvement. Thereafter the Complainant got herself examined by another doctor, who opined that the Complainant had lost her eye sight due to negligence in the operation in having used unclean and unhygienic instruments because of which the Complainant lost her eye sight permanently. The Complainant got issued legal notice on 03.08.2010 calling upon the Treating Doctor to pay compensation of Rs. 5 lakhs but the said notice returned unclaimed. Hence the Complainant approached the District Forum seeking a lump sum compensation of Rs. 5,00,000/-.
3. The Treating Doctor filed the Written Version stating that Complainant was suffering from a complicated cataract i.e. Chronic Iridocyclitis and, therefore, the treatment, surgery and outcome of the same cannot be compared with that of senile cataract. It was averred that the Complainant had an additional factor i.e. history of hemorrhage which was treated elsewhere. The Complainant did not produce any record of the treatment given to her earlier. The status of retina could not be viewed on account of the dense cataract. Indirectly, an idea can be confirmed by testing the perception of light and projection of rays. Some time was taken to treat her Chronic Iridocyclitis and when only perception of light was positive, she was advised cataract extraction to improve vision marginally and plan for the treatment of retinal condition to further improve the vision. In the first post-operative visit, vision improved from perception of light to hand movement. It was averred that within the first week of operation, Complainant developed stroke (CVA) involving brain stem and she was put on anti platelet and anticoagulants in another hospital. It was stated that Complainant developed bleeding in the eye which was on account of usage of the afore-noted drugs Her neurological status was responsible for her vision not improving further and it was denied that there was any inadequate sterilization either during the surgery or thereafter. It was averred that four months after the surgery, the Complainant was examined by another ophthalmologist who observed that the operated eye still had perceptional light, hence there is no negligence as the Treating Doctor had acted in accordance with the normal standards of care.
4. Based on the evidence adduced, the District Forum allowed the Complaint in part directing the Treating Doctor to pay an amount of Rs.4.50 lakhs with interest @ 9% p.a. from the date of the filing of the Complaint i.e. 07.10.2010 till the date of the realization together with costs of Rs. 2000/-.
5. Aggrieved by the said order the Treating Doctor preferred an Appeal before the State Commission which while concurring with the findings of the District Forum observed as follows:-
"In crystal clear terms, the RW1 appellant, in his cross-examination stated that after the treatment, a scan was taken to assess the retinal function and on examination he has come to the conclusion that the patient is fit for cataract operation. He advised the patient to take the fitness certificate from the General Physician and the patient produced the certificate issued by General Physician before him. But, for the reasons best known, he has not filed the fitness certificate issued by the general physician. He did not preserve the prescription given by the General Physician to show that PW1 was fit to undergo surgery for her left eye. This plea does not find place either in the written statement or in the evidence affidavit of the RW1 and this plea appears to have come up with this plea in order to save his skin. Had really the patient obtained the Certificate issued by the General Physician, the appellant ought to have filed the same. It is also admitted by RW1 that there is no mention in the discharge summary that PW1 continued BP tablets as advised by the General Physician.
It was the specific case of the respondent that on account of used, uncleaned and unhygienic instruments, virus caused loss of sight permanently as against which, nothing is brought on record by the appellant. In this regard, we may state that sterilization in Ophthalmic practice is compulsory. Decontamination, disinfection and sterilization are basic components of any infection control programme. Lack of knowledge or negligence in infection or standard practices would result in hazardous effects as sterile instruments and environment are essential for successful eye care service. Sterilization is defined as the complete absence of any viable microorganisms including spores. The objective of sterilization is to remove or destroy microorganisms since they cause contamination infection and decay. The purpose for sterilization, the material to be sterilized and the nature of the microorganisms that are to be removed or destroyed decides on the methods of sterilization employed. Any sterilization process must be monitored by chemical and biological method. It includes pressure, temperature and other methods depending on the sterilization method. The sterilization procedure chosen should be appropriate for the item to be sterilized. Sources of infection to the outpatient are mainly due to the contamination on the Surgeon's and para-medics' hands, tonometer, slit lamp, opened old medication bottles etc. The methods of sterilization most commonly used are dry heat, wet heat and formaldeyhyde and gas. Admittedly, it is not brought on record on the part of the Appellant as to the sterilization of the instruments in the operation theatre. Proper design and maintenance of operating room is important to prevent transportation of micro organisms. Personnel who enter the operating rooms suits, contains large quantities of bacteria, in the nose and mouth, on the skin and on the attire, which may contribute to serious infections. Measures should be taken in order to follow the regulations in maintaining in the operation room. It is also essential to maintain the theatre discipline and to avoid unnecessary talking or movement in the theatre. Nothing is brought on record by the appellant that any of the above procedure was adopted. His entire written statement and the evidence affidavit is silent."
6. Learned Counsel appearing for the Revision Petitioner vehemently contended that the Petitioner diagnosed the case of the Complainants as a complicated cataract as she was suffering from Chronic Iridocyclitis; that at the time of examination 'the left eye had perception of light'; that the Complainant developed a stroke (CVA) involving the brain stem and she was put on anti platelet and anticoagulants which resulted in the bleeding in the eye; that on 25.02.2009 within seven days from the date of the eye surgery, the Complainant developed a CVA for which she was admitted in another hospital; that after 18.08.2009 the Complainant never approached the Petitioner herein for any follow-up and did not consult him for a period of 10 months as seen from the record and chose to file a Consumer Complaint before the District Forum and there was no negligence on the part of the Revision Petitioner.
7. Learned Counsel appearing for the Complainant contended that the Treating Doctor did not take any medical fitness certificate from the physician prior to the conduction of the surgery which was extremely necessary considering the high-risk condition of the Complainant; that the presence of physician and anesthetist was very much necessary in such circumstances; that Parse Plane Vasectomy with lens removal ought to have been performed when it is a complicated cataract; that if the Petitioner had found that the Complainant had history of CVA he ought to have performed the operation after taking the necessary precautions and, therefore, the Treating Doctor is negligent and he defended the findings of both the Fora below.
8. It is an admitted fact that the Complainant had a complicated cataract and had visited the Treating Doctor initially on 23.09.2008. It is the Petitioner's case that the Complainant was suffering from a complication called Chronic Iridocyclitis (inflammation of the eye and ciliary body) which had to be treated before operating on the left eye for cataract. As the left eye of the Complainant had 'perception of light' she was prescribed certain drugs for the treatment of Chronic Iridocyclitis. It is also an admitted fact that the Complainant approached the Petitioner on 01.10.2008, 03.10.2008 and 10.10.2008. It was pleaded that the cataract surgery was performed on 19.02.2009 and the brief point for consideration herein is whether there is any negligence on the part of the Treating Doctor in the performance of the surgery or in post-operative care.
9. We address ourselves to the first contention of the Counsel for the Complainant that the medical fitness certificate ought to have been taken by the Treating Doctor from the physician and that the bleeding in the eye had developed because of the negligence in the surgery and also because of unhygienic equipment having been used during the procedure. A brief perusal of the first prescription dated 23.09.2008 shows diagnosis of 'LEFT EYE CHRONIC IRIDOCYCLITISC WITH IRIS PIGMENT.' It also records history of blood in eye treated at Sarojini Devi Eye Hospital and necessary medication was given. In the subsequent prescriptions whereby the Treating Doctor treated the Complainant the ailment is not disputed. A perusal of the discharge summary concerning the cataract surgery shows the final diagnosis as "LE COMPLICATED CATARACT WITH CHRONIC IRIDOGYCLITIS". The treatment record given by Mahesh Hospital and Research Foundation shows that the Patient's BP was very high ie. 200/105 and she was a known case of hypertension since five years and known case of convulsions. It is pertinent to note that in the treatment CLOPIGREL-A-OD was advised. Thereafter Complainant consulted the Treating Doctor on 17.03.2009, 19.03.2009, 07.04.2009, 29.04.2009, 25.05.2009 and 18.08.2009 and was given drops and also some standard medicines for the blood behind the IOL. It is pertinent to note that after a period of seven days from the date of the surgery i.e. on 25.02.2009 the Complainant developed CVA involving brain stem as can be seen from the record of Mahesh Hospital and Research Foundation. She was given injection 'CLEXANE' and also 'CLOPIGREL' and was put on anti platelet and anticoagulants drugs. It is significant to mention here that the Patient had history of CVA; the cataract was a complicated cataract with Chronic Iridocyclitis for which the Treating Doctor treated the Complainant from 23.09.2008 to 18.02.2009 and then performed the cataract surgery. It is also significant to mention that admittedly the Complainant developed CVA a week after the cataract surgery. CVA neither developed during the process of surgery or during the stay of the Complainant in the Treating Doctor's Hospital i.e. on 18th or 19th of February, 2009. There is no nexus between the cataract surgery having been performed on 18.02.2009 and the CVA which had developed one week after the surgery, for which the Complainant admittedly has a previous history.
10 Now we address ourselves to the contention of the Learned Counsel for the Complainant that a medical fitness certificate was necessary. A brief perusal of the Complaint shows that there is no specific pleading in the Complaint regarding a medical fitness certificate which ought to have been taken by the Treating Doctor prior to the conduction of the surgery. In fact the entire pleadings in the Complaint was that the Treating Doctor had used unhygienic instruments on account of which virus developed causing loss of sight. There is no documentary evidence to establish that the Treating Doctor had used unhygienic instruments or that the Complainant had developed any virus. Neither the name of the virus nor the cause and effect of the same was pleaded. Even in the subsequent Hospital where the Complainant had been treated nowhere has it been written that there was any virus or that the surgery was conducted with any unhygienic instruments. Be that as it may, the discharge summary shows that in the investigations done, hypertension was checked keeping in view the history of the Complainant. The State Commission has erred in giving the finding that the fitness certificate ought to have been issued by the general physician without taking into consideration that there was no such pleading in the Complaint and also that there is no such specific protocol to be followed under normal standards of medical parlance. We are of the considered view that the Treating Doctor had checked the hypertension as can be seen in the discharge summary and treated the Patient for five months prior to the surgery before conducting the surgery. It was not as if the Complainant was being seen for the first time by the Treating Doctor. The argument of the Learned Counsel for the Complainant that Parse Plane Vasectomy procedure with lens removal ought to have been performed, as it is a complicated surgery, is also not sustainable as the Hon'ble Supreme Court in Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research (2010) 3 SCC 480 has laid down that if the Treating Doctor chooses one procedure over the other it cannot be considered as a negligence. It is significant to mention that the expert committee of Sarojini Devi Eye Hospital gave the report on 01.01.2013 stating as follows:-
"Patient got admitted on 18.02.2009 and underwent Small incision cataract surgery with posterior chamber intraocular lens implantation for chronic iridocyclitis with complicated cataract on the same day and was discharged on 19.02.2009 with only perception of light in the operated eye.
Patient was reviewed on 21.02.2009, 06.03.2009 and adequately treated. On 29.04.2009 patient developed blood in the operated eye for which Anterior Chamber wash was done. Patient was reviewed on 25.09.2009, 18.08.2009 adequately treated by steroid eye drops and atropinization and on 18.08.2009 the consultant noticed the eye going into phthisis bulbi.
On 16.06.2010 patient was examined at Neo Retina Eye Care Institute, and found to have phthisis bulbi in the left eye with no vision and right eye showed branch retinal vein occlusion due to hypertension.
After seeing the relevant records of Smt. A. Vijayalakshmi, we opine that the patient was suffering from iridocyclitis apart from cataract for which adequate treatment was given by the consultant before surgery."
11. As can be seen from the afore-noted report even the expert committee opined that the Treating Doctor had followed the standard care as required by normal medical protocol. It is observed from the impugned order that the State Commission had completely digressed from all the pleadings actually pleaded in the Complaint and has illustrated with respect to the sterilization processes and the difference between the sight and vision and travelled beyond the pleadings without observing anything on the prescriptions or on the Expert Committee Report.
12. For all the afore-noted reasons, we are of the considered view that there is no negligence on the part of the Treating Doctor and the Revision Petition is allowed and the findings of both the fora below are set aside. In the result the Complaint is dismissed.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER