State Consumer Disputes Redressal Commission
Dr. J.K. Gupta vs Bachittar Singh on 12 July, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
1)
First Appeal No.731 of 2019
Date of Institution : 13.11.2019
Date of Reserve : 08.06.2022
Date of Decision : 12.07.2022
Dr.J.K.Gupta, Eye Specialist & Phaco Surgeon C/o Roshni Eye
Hospital (Unit of Roshni Charity Trust), Urban Estate, Phase-I,
Model Town, Bathinda, E-mail :[email protected]
.....Appellant/Opposite party No.1
Versus
1. Bachittar Singh son of Sher Singh, resident of House
No.15497, Gali No.2, Hazura Kapura Colony, Bathinda.
......Respondent/Complainant
2. United India Insurance Co. Ltd., 2090-B, The Mall, Kanwar
Market, Bathinda, through its Branch Manager, Email:
[email protected].
3. M/s Roshni Eye Hospital, a unit of Roshni Charity Trust,
Urban Estate, Phase-1, Model Town, Bathinda, through its
Manager/President. Email:[email protected]
4. M/s Grewal Eye Institute, SCO No.168-169, Sector 9-C,
Chandigarh-160009 through its Chairman/Chief Managing
Director. Email: [email protected]
5. United India Insurance Co. Ltd., Divisional Office III, SCO
149-150, Sector 8-C, Chandigarh, through its Divisional
Manager, Email : [email protected]
....Respondent/Opposite Parties No.2 to 5
(2) First Appeal No.832 of 2019
Date of Institution : 20.12.2019
Date of Reserve : 08.06.2022
Date of Decision : 12.07.2022
First Appeal No 731 of 2019 2
M/s Roshni Eye Hospital, a unit of Roshni Charity Trust, Urban
Estate, Phase-1, Model Town, Bathinda, through its
Manager/President (Mr.Deepak Gupta, Authorized Represetantive)
....Appellant/Opposite party No.3
Versus
1. Bachittar Singh S/o Sh.Sher Singh, resident of House
No.15497, Gali No.2, Hazura Kapura Colony, Bathinda.
......Respondent/complainant
2. Dr.J.K.Gupta, Eye Specialist & Phaco Surgeon C/o Roshni
Eye Hospital (Unit of Roshni Charity Trust), Urban Estate,
Phase-1, Model Town, Bathinda, E-Mail
:[email protected]
3. United India Insurance Co. Ltd., 2090-B, The Mall, Kanwar
Market, Bathinda, through its Branch Manager, E-Mail:
[email protected].
4. M/s Grewal Eye Institute, SCO No.168-169, Sector 9-C,
Chandigarh-160009 through its Chairman/Chief Managing
Director, E-Mail : [email protected]
5. United India Insurance Company Limited, Divisional Office
III, SCO 149-150, Sector 8-C, Chandigarh, through its
Divisional Manager, E-Mail : [email protected]
....Respondents/Opposite parties No.1, 2, 4 & 5
First Appeals against the order dated
01.10.2019 of the District Consumer
Disputes Redressal Forum (now
'Commission'), Bathinda.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mr.Rajinder Kumar Goyal, Member
Present (F.A. No.731 of 2019):-
For the appellant : Sh.Vishal Aggarwal, Advocate For respondent No.1 : Sh.G.L.Bajaj, Advocate For respondents No.2&5: Sh.Neeraj Khanna, Advocate For respondent No.3 : Sh.K.S.Cheema, Advocate For respondent No.4 : None First Appeal No 731 of 2019 3 RAJINDER KUMAR GOYAL, MEMBER This order will dispose of above mentioned two connected appeals filed by opposite party No.1 and opposite party No.3 challenging the same order passed by the District Consumer Disputes Redressal Commission, Bathinda. However, for the purpose of detailed facts, we are taking up First Appeal No.731 of 2019.First Appeal No.731 of 2019
2. The appellant/opposite party No.1 has filed the present appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter to be called as "The Act, 1986"), to challenge the impugned order dated 01.10.2019 passed in C.C No.547 of 2016 by District Consumer Disputes Redressal Commission, Bathinda (in short "the District Commission").
It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. The respondent/complainant filed a complaint under Section 12 of the CP Act, 1986 (as amended upto date) before the District Commission, Bathinda which was partly accepted with Rs.10,000/- costs against opposite parties No.1 & 3 and dismissed qua opposite parties No.2,4 & 5. The opposite parties No.1 & 3 were directed to pay Rs.5,00,000/- to the complainant. It was further ordered to comply the order within 45 days by opposite partie No.1 First Appeal No 731 of 2019 4 & 3 jointly and severally, failing which, the amount Rs.5,00,000/- would carry interest @12% p.a. till payment.
4. As per the averments in the complaint, the complainant on 23.12.2015 went to the Hospital of opposite party No.1 for check- up and treatment for right eye. After Macula Map (EMM5) Retina Report, the opposite party No.1 diagnosed: Post Sub Capsular Cataract Pseudophakia OS and prescribed Zymar eye drops and Genteal Eye drops and charged Rs.50/- from the complainant against receipt dated 23.12.2015. The opposite party No.1 further advised the complainant to undergo Phaco Multifocal RE and allured the complainant for getting the surgery done having no other choice with him. Thereafter, the complainant got admitted himself in the hospital for surgery, where the opposite party No.1 charged a sum of Rs.54,000/- for Phaco Multifocal RE vide receipt dated 28.12.2015. After surgery, the opposite party No.1 discharged the complainant on 29.12.2015 after prescribing few medicines. After few hours of the operation, the complainant felt severe pains and watering irritation in his right eye and complained to opposite party No.1, to which the opposite party No.1 gave some simple eye drops and Antibiotic medicines to the complainant but the complainant did not get any relief. The complainant visited Dr.Sunny Goyal at Brar Eye Hospital on 12.01.2016 for check-up and treatment of right eye. The said doctor referred the complainant to Dr.Mani, Cornea Opinion BEH at KKP at the said Brar Eye Hospital, who diagnosed-pseudophakia Corneal First Appeal No 731 of 2019 5 Decomposition and prescribed some medicines and advised to visit on 19.01.2016. The complainant again visited to Dr.J.K.Gupta, Roshni Eye Hospital on 03.02.2016 to check-up and treatment, who referred him to Sanjivni Eye Care, Ambala City and on dated 13.02.2016, the complainant visited the said hospital for his treatment of right eye and for Orneal Specular Microscopy, where he was charged Rs.2500/- by hospital. Thereafer, on 22.02.2016, the complainant visited at Grewal Eye Institute at Chandigarh, where Dr.Grewal SPS diagnosed :Pseudophakia Corneal Edema and prescribed few medicines.
5. It was further averred that opposite party No.1 has failed to conduct successful Pahco Multifocal RE, due to his inefficiency and negligence. The opposite party No.1 caused loss of vision in the right eye and heavy physical loss to the complainant besides mental tension due to negligence and error on the part of the opposite party No.1. Further life of the complainant has also been paralyzed. The act and conduct of opposite party No.1 was a professional misconduct as the opposite party No.1 had done eye surgery in a negligent manner and against the norms of Medical Science and Medical Ethics. The complainant had already spent a sum of Rs.2,00,000/- on medicines, fees of doctors and test reports etc. The opposite party No.1 has purchased professional indemnity policy which was valid from 24.07.2015 to 23.07.2016 upto the amount of Rs.10,00,000/- from opposite party No.2, as such, both the parties are liable to pay the claimed amount along with First Appeal No 731 of 2019 6 compensation to the complainant, jointly and severally. The complainant filed the consumer complaint before the District Commission to sought the following reliefs:
i) complaint be accepted with cost of Rs.10,000/-;
ii) to pay Rs.15,00,000/- as compensation as mentioned in para 8 of the complaint and all treatment expenses of Rs.2,00,000/-.
iii) to pay interest at the rate of 18% per annum on the said amount from the date of his complaint till payment, jointly and severally.
6. The opposite parties contested the complaint by filing their separate replies.
7. The opposite party No.1 filed its reply raising certain preliminary objections that the complainant is not a consumer qua answering opposite party as the complainant has not made any payment to the answering opposite party. The complainant directly came to Roshni Eye Hospital which is a unit of Roshni Charity Trust and being run by Grewal Eye Institute Chandigarh and the answering opposite party is working as eye consultant and surgeon. The complaint is bad for non-joinder of necessary party namely Roshni Eye Hospital from whom the complainant got conducted cataract surgery. It was further submitted that the answering opposite party having qualification of MBBS, M.S. (OPH) and is having experience of more than 35 years and have till date First Appeal No 731 of 2019 7 conducted such surgeries of more than 3,000 with very success rate.
8. On merits, it was submitted that after check up of right eye, the complainant was advised MACULAR Map of both eyes which was found to be normal and after doing proper check up the complainant was diagnosed with Cataract (Posterior Sub capsular) in right eye and was advised to undergo cataract surgery with IOL implantation but complainant having heard of technique of Phaco Emulsification and multi focal IOL asked the answering opposite party to perform his surgery in that technique. The answering opposite party explained the procedure in detail and also made aware about the risks and complications which can occur during operation and post surgery. Further stated that before performing the surgery and after the operation the answering opposite party and staff of the hospital made the complainant aware about the complications and complainant even in writing after understanding the consequences of surgery signed on the consent letter under his own signatures and gave consent. Further submitted that during surgery no complication arose and after surgery the complainant was discharged in very good condition. The complainant failed to follow the post operative medications as advised in discharge card and even fail to come to answering opposite party on the date fixed i.e. 12.01.2016 and also not before 12.01.2016 in case of any problem. As per medical literature all cataract surgery do some damage to corneal cells and it may continue for some months also First Appeal No 731 of 2019 8 which may result into damage in vision and it can be cured either by taking medicines or in case even after medication same is not cured then further surgery of Corneal Transplantation is required and as per the diagnose made by answering opposite party complainant was advised to get the opinion and further management from Corneal specialist at Ambala. Further submitted that there was no deficiency in performing the eye surgery of the complainant because the complainant even after getting his eye surgery had gone to Brar Eye Hospital, Sanjivni Eye Care Ambala, Grewal Eye Institute, Chandigarh and none of the above institutes ever raised any finger about the procedure adopted by answering opposite party. The complainant himself has failed to get the post operative care and the complainant after surgery had the problem of corneal edema which is a very common post operative condition which can be cured by medication and if after medication the same is not cured then corneal transplantation is the proper procedure which the complainant has not opted. Rest all the averments as averred by the complainant in his complaint were denied and prayed for dismissal of the complaint with costs.
9. Opposite party No.2 filed its reply and took legal objections that Dr.J.K.Gupta, opposite party No.1 is working with Roshni Charitable Trust and the said trust provides treatment free of cost and, as such, there exists no relationship of consumer and service provider. Dr.J.K.Gupta, is a highly qualified MBBS, MS (Oph) and has a vast experience in the field of treatment of eye ailments and First Appeal No 731 of 2019 9 eye surgery and there is no deficiency in service on the part of opposite party No.1 in providing medical advice and treatment provided to the complainant. There is no expert evidence who could prove that the opposite party No.1 was negligent in any manner. The opposite party No.1 has obtained Professional Indemnity for doctors and Professional policy vide No.2004002715P106073728 effective from 24.07.2015 to 23.07.2016 issued to opposite party No.1 is a contract of insurance to indemnify the insured regarding any legal liability/award/order, which has been satisfied by the insured. As no award/liability / order payment has been made against the opposite party No.1 and in favour of the complainant and no compensation has been awarded to the complainant so far, therefore, the insurance company cannot be impleaded as party at this stage. Further, as per Clause 2(v) of the policy, the policy does not cover the risk arising out of fines, penalties, punitive or exemplary damages. On merits, the contentions as narrated in legal objections have been reiterated. There is no deficiency on the part of the answering opposite party and prayed for dismissal of the complaint with costs.
10. Opposite party No.3 filed its reply and took legal objections that the complaint is frivolous, vexatious and liable to be dismissed under Section 26 of the Act. It was submitted that the answering opposite party made unnecessary party, whereas the operation was conducted by opposite party No.1 and the trust has no concern with the treatment of the complainant. It was further First Appeal No 731 of 2019 10 submitted that there is no deficiency in service no any unfair trade practice committed by the answering opposite party as the surgery was conducted by opposite party No.1 only.
11. On merits, it was submitted that Dr.J.K.Gupta, opposite party No.1 duly examined the complainant and after examination he was advised to undergo phacoemulsification with multifocal intra ocular lens implant in the right eye, as the same is the standard treatment for visually significant cataract. The surgery was performed by Dr.J.K.Gupta on 28.12.2015, after obtaining the written consent. Further submitted that opposite party No.1 is an experienced surgeon and his total treatment was accurate and as per medical ethics. There has been no wrong done by opposite party No.1. Pseudophakia Corneal Edema is a common problem after such type of surgery. The answering OP duly paid all surgery charges and other fees to OP No.1 on account of treatment of complainant. Rest all the averments as averred by the complainant in his complaint were denied and prayed for dismissal of the complaint.
12. Opposite party No.4 filed its reply and took legal objections that the complaint is frivolous, vexatious and liable to be dismissed under Section 26 of the Act. Further submitted that opposite party No.4 is well qualified, reputed and respected doctor. The matter requires elaborate oral evidence as well as cross examination and other elaborate documentary evidence, which can only be decided by the Civil Court.
First Appeal No 731 of 2019 11
13. On merits, it was submitted that as per medical record available in the District Commission, the patient was admitted in Roshni Eye Hospital, Bathinda under the treatment of Dr.J.K.Gupta, opposite party No.1 for right eye phacomulsification with multifocal IOL implant on 28.12.2015. Further submitted that the answering opposite party and opposite party No.3 are separate concerns and separate identity and have no concern with each other. The complainant before the surgery and at the time of surgery neither checked by opposite party No.4 at any stage nor met with opposite party No.4 for any medical advice. The complainant first time visited the answering opposite party on 22.02.2016 with the problem of Pseudophakia Corneal Edema, which is a common problem after phacoemulsification surgery and the opposite party No.4 duly prescribed the medicines to the complainant in the OPD. Rest all the averments as averred by the complainant in his complaint were denied and prayed for dismissal of the complaint.
14. Opposite party No.5 filed its separate reply and took legal objections that opposite party No.3 i.e. Roshni Charitable Trust is a Charitable Trust and provides treatment free of cost to its patient and, as such, there exists no relationship of consumer and service provider. Neither the complainant has obtained any treatment from opposite party No.4 nor has alleged any deficiency in service against opposite party No.4. The opposite party No.4 has obtained Professional Indemnity for doctors and Professional Policy vide First Appeal No 731 of 2019 12 cover Note No.1010920 effective from 29.04.2015 to 28.04.2016 and aforesaid policy issued to opposite party No.4 is a contract of insurance to indemnify the insured regarding any legal liability/ award/ order, which has been satisfied by the insured. Since no award/liability/order/payment has been made against opposite party No.4 and in favour of the complainant and no compensation has been awarded to the complainant so far, therefore, the insurance company cannot be impleaded as party at this stage. As per Clause 2(v) of the policy, this policy does not cover the risk arising out of fines, penalties, punitive or exemplary damages. On merits, the contentions as stated in legal objections have been reiterated and prayed for dismissal of the complaint with costs.
15. The parties produced evidence in support of their respective averments before the District Commission, which after going through the same and hearing learned counsel appearing on their behalf passed the order whereby the complaint filed by the complainant was partly allowed against opposite parties No.1 & 3 and dismissed qua opposite parties No.2, 4 & 5.
16. Aggrieved by the impugned order dated 01.10.2019 passed by the District Commission, the appellant/opposite party No.1 has filed the present appeal, by raising various arguments.
17. Learned counsel for the parties argued the matter at length. The written arguments have also been filed by the appellant, respondents No.1, 2 & 5, whereas the written arguments have First Appeal No 731 of 2019 13 been filed by respondent No.3 in F.A. No.832 of 2019 as the same has been filed by the respondent No.3 as appellant.
18. Sh.Vishal Aggarwal, Advocate, learned counsel for the appellant vehemently argued that there is no expert opinion on record to evident that there was any deviation of procedure or medical negligence wherein the appellant has not followed the due procedure. There is no absolute document to show that there was any loss of vision of his right eye. As per medical literature pseudeophakia corneal decompensation or corneal edema is a common post operative condition after eye surgery. In fact the same occurs due to accumulation of fluid which is generally curable with medicine. However, in certain cases it may not be cured with medicines and therefore, in those cases corneal transplantation is required. As per the observation of District Commission, it agrees to the fact that there was no deficiency or medical negligence on the part of the appellant and the consent form has been duly placed on record to show that the risks had been duly explained to the complainant and accepted by him as well. The respondent No.1/complainant himself also pleaded that he did not go to the hospital or to the appellant on the prescribed date i.e. 12.01.2016 or before that instead he kept roaming from one doctor to other leading to further delay in treatment for Corneal-Edema. The appellant and hospital are duly insured and in case of any liability the same is to be borne by the Insurance Company. Finally, it has First Appeal No 731 of 2019 14 been prayed to allow the appeal by setting aside the impugned order passed by the District Commission.
19. Sh.G.L.Bajaj, Advocate, learned counsel for respondent No.1/complainant argued that the District Commission after affording opportunity to the appellant and other respondents passed the award in favour of respondent No.1/complainant. The appellant was aware about the side effects of the Phaco Surgery, but he intentionally not disclosed and consulted the same with the respondent No.1 so that he may not withdraw from the said surgery, which is quite expensive. The appellant is not competent to conduct cataract operation (PHACO technique), which is a new technique and earlier also the appellant negligently conducted operation of cataract of the left eye of one Ishar Singh on 07.04.2001 while working as Eye Consultant and Surgeon in S.S.D. Mahavir Dal Hospital, Bathinda. The complainant has to visit numerous hospitals at Bhatinda, Kotkapura, Patiala, Chandigarh, Ambala and Delhi and spent more than Rs.2,00,000/- on medicines, doctor's fees, test reports, logistics etc. The complainant became handicapped and has to keep/hired an attendant. The order passed by the District Commission is a well reasoned and justified and there is no need of interference in it. Finally, it is prayed to dismiss the appeal and upheld the order of the District Commission.
20. Sh.Neeraj Khanna, Advocate, learned counsel for respondents No.2 & 5 argued that on 28.12.2015, surgery for First Appeal No 731 of 2019 15 Phaco Multifocal RE was conducted on the complainant and he was discharged on 29.12.2015. Thereafter, he did not get any relief from pain and irritation. He went to Dr.Sunny Goyal at Brar Eye Hospital, G.T. Road, Bathinda. The complainant again visited to Dr.J.K.Gupta only on 03.02.2016 for check up as he was not feeling well, where doctor J.K.Gupta advised him to visit Sanjivni Eye Care, Ambala city. On 13.02.2016, the complainant visited that hospital for the treatment of his right eye. Further, he visited to Grewal Eye Institute at Chandigarh on 22.02.2016. It is argued that the District Commission while allowing the complaint held that the complainant has not produced on record any receipt to prove the expenses except the receipt of payment of Rs.54,000/- but still the District Commission awarded Rs.5,00,000/- compensation on account of medical negligence which means it is penalty imposed on Dr.J.K.Gupta and M/s Roshni Eye Hospital which is not covered under the Insurance Policy. As per the Policy only Dr.J.K.Gupta is covered as the insured and not M/s Roshni Eye Hospital. Finally, it has been prayed to dismiss the appeal qua United India Insurance Company Ltd. with costs.
21. The respondent No.3 has also filed an appeal bearing F.A. No.832 of 2019, whereby Sh.K.S.Cheema, Advocate argued the matter on behalf of the respondent No.3/ appellant (in FA No.832 of 2019) that the order passed by the District Commission is arbitrary, illegal, perverse and is liable to be set aside. The District Commission has failed to appreciate the fact that the respondent/ First Appeal No 731 of 2019 16 complainant was duly operated after obtaining the written consent for Right Eye Phacoemulsification with multifocal intra ocular lens implant on 28.12.2015 by Dr.J.K.Gupta. Dr.Gupta, is an experienced surgeon and treatment was accurate and as per medical ethics. Further argued that Dr.Gupta is duly insured and in case of any liability is to be indemnified by the Insurance Company who was also a party in the complaint but the District Commission dismissed the complaint against the Insurance Company. The complainant was made aware about the complications of the surgery, which the complainant himself chosen. The complainant was discharged from the hospital in a satisfactory condition. At the time of discharge the complainant was prescribed eye drops which were to be regularly used as per the prescription without any fail. Moreover, the problem, which the complainant is suffering occurred in case of the patient not putting the eye drops as prescribed at the time of discharge after surgery. The District Commission has failed to appreciate that the complainant has failed to prove the basic averments made by him in the complaint. The District Commission has also failed to appreciate that there was no expert opinion on record to show that there was any deviation of procedure or any medical negligence wherein the appellant has not followed the due procedure. It also failed to appreciate that the consent form has been duly placed on record by the respondent No.3/appellant. There is no medical negligence on the part of the respondent No.3/appellant but an attempt to malign the reputation of the First Appeal No 731 of 2019 17 appellant-hospital and also to extract money out of them. Finally, it is prayed to set aside the impugned order passed by the District Commission and also to allow the connected appeal bearing F.A. No.832 of 2019 in the interest of justice.
22. Heard arguments of Ld. Counsel for the parties. We have also carefully perused the impugned order passed by the District Commission, written arguments submitted on behalf of the appellant, respondents No.1, 2, 3 & 5 and other documents available on the file.
23. Brief facts of the case as per documents placed in record are that the respondent/complainant on 23.12.2015 visited respondent/opposite party No.3/hospital i.e. Roshni Eye Hospital where he was examined by the appellant/opposite party No.1 i.e. Dr.J.K.Gupta, who diagnosed as Post Sub Capsular Cataract OD Pseudophakia OS and advised eye drops and other tests vide Ex.C-2 to Ex.C-4. Further on 28.12.2015, the respondent no.1/complainant was operated upon by the appellant-opposite party No.1 for Cataract RE with Phaco Multifocal RE and was discharged on 29.12.2015 with advise to come on 12.01.2016 for follow up, vide Ex.C-7. The respondent No.1/ complainant had averred in his complaint that he was not feeling well after surgery i.e. having blurring vision. The respondent No.1/ complainant got examined from other medical experts i.e. Brar Eye Hospital Pvt. Ltd., Kotkapura on 12.01.2016, wherein he was diagnosed 'Pseudophakia Corneal Decompensation' which was also First Appeal No 731 of 2019 18 confirmed by the appellant/opposite party, when the respondent No.1/complainant visited Roshni Eye Hospital on 03.02.2016 and diagnosed as 'Pseudophakia with Central Sk' vide Ex.C-10. The respondent No.1/complainant further got examined from Sanjivni Eye & Medicare Centre, Ambala City on 13.02.2016, Grewal Eye Institute, Chandigarh on 22.02.2016 and diagnosed as Pseudophakia OU, Pseudophakia Corneal Edema OD. He also visited Max Hospital, Bathinda on 23.05.2017, Indraprastha Apollo Hospital, Delhi Bharat Vikas Parishad, Chandigarh where he was advised for Corneal grafting. Lastly the respondent No.1/complainant was again operated by Brar Eye Hospital Pvt. Ltd., Kotkapura.
24. From the prescription slips of all the medical experts, it was concluded and diagnosed as 'Corneal Edema' and as per reply of Dr.S.P.S.Grewal of Grewal Eye Institute, Sector-9C, Chandigarh that Pseudophakia Corneal Edema is a common problem after phacoemulsification surgery.
25. Now the issue emerges as to whether the treating doctor had explained the respondent No.1/complainant before surgery the complications arising out of phacoemulsification surgery or not? And whether the doctor had taken a valid consent after explaining the facts before surgery or not?
26. It is now well settled preposition of law that medical practitioners/Doctors must take consent before performing any procedure/operation, which is a legal requirement as per First Appeal No 731 of 2019 19 Regulation 7.16 of Indian Medical Council (Professional, Conduct, Etiquette and Ethics) Regulations, 2002, which reads as under:
"7.16 Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed."
27. It is not merely a formality. In medical negligence cases, it is most relevant when such cases come up for judicial scrutiny. Except in medical emergency cases informed consent must be taken before any investigation, procedure or treatment. In medical emergency life saving treatment can be given even in absence of consent.
28. In the present case, there is no document to evident that treating doctor Dr. J.K.Gupta had explained the facts and taken a valid consent from respondent No.1/complainant or his relation/ attendants. The Consent Letter Ex.OP1/10 does not bear the signature of doctor/ surgeon or any witness. The said letter is meant for Grewal Eye Institute, Chandigarh, whereas the surgery was done by Dr.J.K.Gupta in Roshni Eye Hospital, Bathinda. Also under the State of Voluntary Participation in Ex.OP-1/10, it is mentioned as under:
"I hereby consent to the Cataract surgery and authorize that it be done by Dr.Grewal SPS or his/her associates, all of whom are credentialed to perform Cataract surgery at Grewal Eye Institute, Chandigarh"First Appeal No 731 of 2019 20
Which means that the so called consent was only meant for Grewal Eye Institute, Chandigarh and not for Dr.J.K.Gupta of Roshni Eye Hospital, Bhatinda. Also, the respondent No.4/opposite party No.4 i.e. Grewal Eye Institute in its reply in para 14 has stated that opposite party No.3 and opposite party No.4 i.e. Roshni Eye Hospital and Grewal Eye Institute are separate concerns and separate identity. They have no concern with each other. Moreover, the complainant before surgery and at the time of surgery neither checked by opposite party No.4 at any stage and not met with opposite party No.4 for any medical advice. Rather the complainant first time visited with opposite party No.4 on 22.02.2016 with the problem of pseudophakia Edema which is a common problem after phacoemulsification surgery. From the above, it is evident that no consent was ever taken by Dr.J.K.Gupta of Roshni Eye Hospital, Bhatinda before conducting cataract RE with Phaco Multifocal RE surgery upon the respondent/complainant. No other document except Ex.OP-1/10 to evident informed consent was produced before the District Commission or in appeal as additional evidence.
29. In this case, the appellant/opposite party conducted the surgery and knowing well that complications were likely to arise and when complications arose, he referred the case to Sanjivni Eye & Medicare Centre, Ambala. It was on the doctor to inform the patient that in case complications of Corneal Edema arose, he will be referred to other hospitals.
First Appeal No 731 of 2019 21
30. In view of the above, neither the patient nor his relatives/ attendants were informed nor a valid consent was taken as per Regulation 7.16 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. Hon'ble National Commission in "Sitaram Bhartia Institute of Science and Research Vs. Vidya Bhushan Jain & Ors." reported in 2007(2) CPR 609 (NC), held that before undertaking the surgery, the doctor is required to take the 'Informed Consent' of the patient or his/her relatives as held in para 12 under:
"12. Now, the question arises whether before undergoing the procedure of Central Venous Line, the doctors of the opposite party hospital were under obligation to obtain consent from the respondent complainant or his family members? In the matter of Samira Kohli Vs. Dr. Prabha Manchanda & Another 1 (2008) CPJ 56 (SC), Hon'ble Supreme Court has extensively dealt with the concept of consent to be taken from the patient or his family members. In the said case, it has been held that patient has an inviolable right in regard to his body and he has a right to decide whether or not he should undergo the particular treatment or surgery. It was further held by the Hon'ble Supreme Court that unless the procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable 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. In the instant case, as discussed above the insertion of catheter by Central Venous Line procedure being an invasive procedure carrying certain risk of complication including the injury to the jugular vein or bursting of the blood cells, the concerned team of doctor was legally required to obtain the consent of the patient."
Also the UK Supreme Court judgment in "Montgomery Vs. Lanakshire Health Board" has caused a change in the law concerning the duty of doctors on disclosure of information to patients regarding risks. The law now requires a doctor to take First Appeal No 731 of 2019 22 reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments.
31. Accordingly, we are of the view that Valid Informed Consent of the respondent/complainant/patient was required to be taken by the appellants/opposite parties No.1 & 3 before conducting surgery. The complications of surgery were never informed by the appellant/opposite parties No.1 & 3 to the patient. In view of the above statutory provisions and the earlier law, which was held in "Bolam's" case, prior valid informed consent is critical for one's autonomy is self determination. The law presumes that doctor is in dominating position vis-à-vis the patient. It is the duty of the doctor to obtain proper consent by providing all necessary information. In the instant case, ideally, all the options should have been made known to the patient at the pre-operation stage in simple language explaining all pros and cons of each and every complication, which may arise. Once the patient decides, it should have been documented in patient's language duly signed by patient.
32. In view of the law laid down above and as per the discussions above, we are of the opinion that no informed consent was taken from the respondent No.1/complainant or his relatives which amounts to deficiency in service on the part of the appellant/opposite party.
33. The District Commission has rightly observed that there is nothing on record to show that cataract surgery performed by the First Appeal No 731 of 2019 23 appellant/opposite party was not successful treatment as the complainant has suffered from Corneal Edema after cataract surgery. The opposite parties No.1 & 3 have failed to manage the situation and failed to intimate the complainant about all the consequences before surgery. However, the District Commission awarded a compensation of Rs.5,00,000/- without any justification. The complainant has produced only a bill of Rs.54,000/- of Roshni Eye Hospital, Bhatinda for the said cataract surgery. The respondent/ complainant in his complaint has stated that he incurred Rs.2,00,000/- on the medicines/doctor fees/ treatment etc. while examining by other doctors of various places. However, no receipt / bill of the said expenditure of Rs.2,00,000/- has been placed in evidence.
34. Sequel to the above, the appeal is partly allowed against the appellant/opposite party No.1 and respondent No.3/opposite party No.3 jointly and severally and respondent/opposite party No.2-Insurance Company to the extent of its liability. The order of the District Commission is modified as under:
i) to pay a lump sum compensation of Rs.2,50,000/- to the complainant along with interest @ 6% per annum from the date of filing of the complaint till realization on account of discomforts, problems and hardships suffered by the complainant; and
ii) To pay Rs.25,000/- as litigation expenses.First Appeal No 731 of 2019 24
It is made clear that the amount payable by respondent/ opposite party No.2-Insurance Company as per the Insurance Policy, Ex.OP-2/2 on behalf of the appellant/opposite party No.1- Doctor shall be adjusted to the extent of its liability, as per terms and conditions of the said policy.
The other part of the order of the District Commission is upheld.
35. The appellant/opposite party No.1 and respondent No.3/opposite party No.3 and respondent/opposite party No.2 are directed to comply the above directions jointly and severally within 45 days from the date of receipt of certified copy of order.
36. The appellant/opposite party No.1 had deposited a sum of Rs.25,000/- at the time of filing of the appeal. This sum, along with interest which has accrued thereon, if any, shall be remitted by the Registry of this Commission to the District Commission, after the expiry of 45 days of the sending of certified copy of the order to them. The concerned party may approach the District Commission for the release of the above amount to the extent of his/its entitlement and the District Commission may pass the appropriate order in this regard, in accordance with law.
First Appeal No.832 of 2019
37. The instant appeal has been filed by the appellant/opposite party No.3 for setting aside the impugned order passed against First Appeal No 731 of 2019 25 opposite parties No.1 & 3 on the ground that the complainant was explained about the surgery and its complications. The complainant himself was also aware of another technique and insisted upon the appellant to perform the surgery in the said technique i.e. phaco emulsification and multifocal IOL and got admitted himself on 28.12.2015. After discharge, the complainant was prescribed eye drops and asked him to visit the hospital on 12.01.2016 but he had failed to follow the advice given by the doctor and kept on roaming from one doctor to another. The District Commission failed to appreciate that there is no document on record to evident the pleadings of the complainant that there was any loss of vision in his right eye. The allegations as leveled by the complainant in his complaint are without any basis. The appellant is a unit of Roshni Eye Trust. The aim and objective of the trust is to provide quality medical services to poor and needy people irrespective of their religion, color, caste and creed and to provide primary eye care and cataract surgery for poor and needy. There is no deficiency in service or negligence committed on the part of the appellant/opposite party No.3. It is prayed to set aside the impugned order by allowing the appeal.
38. In the grounds of appeal, the appellant/opposite party has stated that respondent/complainant was operated after obtaining written consent for Right Eye phacomulsification with multifocal Intra Ocular lens implant on 28.12.2015 by Dr.J.K.Gupta. However, as explained in First Appeal No.731 of 2019, no informed consent First Appeal No 731 of 2019 26 of the respondent/complainant was taken before surgery. There is no evidence that the patient was explained different options in surgery. The consent form placed as Ex.OP-1/10 is meant for Dr.SPS Grewal of Grewal Eye Institute and not to Roshni Eye Hospital. No other document to evident informed consent has been placed before the District Commission or in the appeal as additional evidence. Therefore, the Hospital is equally held responsible in not obtaining a valid consent.
39. In view of the discussions held in First Appeal No.731 of 2019, the appeal filed by the appellant/opposite party No.3 is partly allowed as per directions issued in F.A. No.731 of 2019. The other part of the order of the District Commission is upheld.
40. The appellant/opposite party No.3 had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It deposited another sum of Rs.2,35,200/- in compliance of the order dated 07.01.2020 against receipt No.2803492 dated 06.02.2020. Both these sums, along with interest which has accrued thereon, if any, shall be remitted by the Registry of this Commission to the District Commission, after the expiry of 45 days of the sending of certified copy of the order to them. The concerned party may approach the District Commission for the release of the above amount to the extent of his/its entitlement and the District Commission may pass the appropriate order in this regard, in accordance with law. First Appeal No 731 of 2019 27
41. The appeals could not be decided within the statutory period due to heavy pendency of the court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER July 12th ,2022 parmod