State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027


S.C. CASE NO-FA/08/492



DATE OF FILING :19.12.08 DATE OF FINAL ORDER: 15.5.09



APPELLANTS/COMPLAINANTS :



1. Netaji Eye Hospital.

P.O Ramchandrapur, P.S-Santuri ,

Dist-Purulia.



RESPONDENTS/O.P.S : :



1. Sri Rabindranath Pal,

S/O Late Ramanikanta Pal,

“Muktadhara”

3,Pubali Co-Operative Bidhan Nagar,

Bidhannagar, Durgapur, Dist- Burdwan.

… Respondent

2. Dr Joydev Kundu,

A-11,Amarabati, Sodepur,

24-Parganas( North), Pin- 743 178.



3. Dr. Usha Varghav,

Bunglow No. D-2,

PO-Mushaboni Mines,

Dist- East Singhbhum, ( Jharkhand)

Pin-832 104.



4. MEDEF a wing of

National Insurance Co. Ltd.

Through its, Regional Manager,

3, Middleton Street,

Kolkata-700 071.

..Proforma Respondents.



BEFORE : HONBLE JUSTICE :

PRESIDENT : Shri Aloke Chakrabarti.

MEMBER : Shri. A.K.Ray.

MEMBER :



FOR THE PETITIONER / APPELLANT : Shri S. Nayak,Shri A.Mukhapadhyay

(Advocates)

FOR THE RESPONDENT / O.P.S. : Shri P.R. Sinha Sarkar,

Shri S.K.Roy Chowdhury.(Advocates)







Shri A.K. Ray., Member



The District Forum Purulia by its order dated 19.11.08 passed in case no 68 of 2004 allowed the complaint of Sri Rabindra Nath Pal and directed OP No –1 Netaji Eye Hospital, OP No –2 Dr. Joydev Kundu and OP No –3 Dr Mrs Usha Varghav to pay a sum of Rs. 6 lakh by way of compensation and Rs. 2,000/- as cost of litigation to the Complainant within one month from the date of the order failing which interest @ 9 % p.a would accrue till payment . OP Nos 1 to 3 were jointly and severally liable to pay the aforesaid compensation and cost. The complaint was allowed on contest against OP No 1 & 2 and exparte against OP No 3 and dismissed against OP No 4.



Being aggrieved by the aforesaid order OP No –1 Netaji Eye Hospital has preferred an appeal being no FA/08/492 and OP No-2 Dr Joydev Kundu has also preferred another appeal against the aforesaid judgement of the Dist Forum being no FA/08/485 . Both the appeals arising out of the same order were heard analogously and the instant judgement will accordingly govern both the cases.



Brief facts of the case are that on 1.9.03 the Complainant Sri Rabindra Nath Pal who is the Respondent no 1 in both the cases was admitted for cataract surgery in his left eye in Netaji Eye Hospital under Dr. Joydev Kundu . He paid Rs. 5,500/- for surgery to the Hospital . Dr. Kundu performed the cataract surgery in his left eye on 2.9.03 by adopting phacoemulsifiction procedure. After 70% (approx) of the nucleus ( cataract) was removed , a small chunk of nucleus dropped in the vitreous cavity . Due to such drop the incision was enlarged. So instead of foldable lens a rigid single piece PMMA Lens was implanted in the nucleus . The patient was referred to Dr. Mrs Usha Varghav, on 3.9.03 Respondent no-3 who was a Vitreoretinal surgeon. Dr. Varghav was the residential Vitreoretinal Surgeon of the hospital at that time. The patient was however discharged by Dr. Kundu on 3.9.03 with advice to attend the hospital after 8 days. The patient was again admitted to Netaji Eye Hospital for removal of dropped nuclear fragments. The patient was taken to the OT for necessary surgery on 17.9.03 ; but as the machine stopped working during surgery operation was postponed following closure of the parts. The patient was discharged on 18.9.03. He was re-admitted for the said operation (Vitrectomy ) on 22.09.03. But the machine was again found defective ; the said surgery could not be done. Patient was discharged on 24.9.03. He was again readmitted on 26.9.03 for the same surgery. Finally the surgery was done on 27.9.03 and the patient was discharged from the aforesaid hospital on 29.9.03. On advice the patient attended the hospital on 9.10.03 when Dr. Kundu examined him and he noticed that the patient had detachment of retina in his left eye. He was referred to Disha Eye Hospital for management.Dr. Kundu also issued an advice note (annexure- H of the complaint) . He however went to Nemesis Eye Center at Kolkata where he was treated by Dr. K.P. Ghosh for his retina detachment in the left eye. The Complainant however lost his vision in the left eye permanently. In fact, at the time of operation for removal of nuclear chunk from his left eye by Dr. Usha Varghav , some damage had been done which might have caused retinal detachment of his left eye. Hence the case before the Forum below alleging inter alia that the loss of vision of the left eye was due to gross negligence and improper application of skill and care by OP No-2 Dr.Joydev Kundu and OP-3 Dr. Mrs Varghav and non functioning of equipment of machine kept in the nursing home of OP –1/ Appellant. OP No- 3 ( Dr. Mrs Varghav) did not appear neither before us at the Commission nor before the Dist Forum below to contest the case.

The case was contested by other OPs i.e 1,2&4 who filed their W.V separately denying all the material allegations of the Complainant. OP No-1 ( Hospital) denied any deficiency in their service for non functioning of machine . Dr. Joydev Kundu OP No-2 and Appellant before us in appeal no 485/08 appeared before the Forum and denied any liability to pay compensation as he had no fault. According to him he conducted the surgery in the left eye of the patient on 02.09.03 adopting Phacoemulsification procedure .During operation a small chunk of nucleus dropped in the Vitreous cavity. Pre-operative PCR drop of nucleus is a known complication of Phaco surgery . As he was not a posterior segment surgeon ,he referred the patient (Rabindranath Pal) to OP-3 ( Dr. Mrs Varghav) who was an expert in vitreoretinal surgery. He also denied his signature in the discharged certificate. He treated the patient to the best of his skill , knowledge and experience and there was no deficiency in service or negligence on his part in the treatment of the patient. OP No-4 , Insurance Company, stated in its W.V that it being the insurer of the Netaji Eye Hospital , they cover the liability of errors and omissions of medical treatment. As there was no error or omission on the part of the hospital authority the Complainant was not entitled to any relief against this OP.



We agree with the observation of the Forum below that initially the Complainant/ Respondent no-1 was charged towards medical service and the patient injured as a result of alleged medical negligence was a consumer. Medical assistance was a service and therefore in the event of any deficiency in the performance of medical service, the consumer was entitled to file a complaint under the C.P Act as a consumer.

Admittedly, Respondent no –1 got admission in the OP-1 hospital for cataract operation in his left eye and he was admitted under Dr. Joydev Kundu ( OP No-2) who did the Phaco Surgery in the processes of which a chunk of Nucleus got dropped accidentally into the vitreous cavity ; it was not removed immediately. As a result of which manifold ailments and complications developed making him suffer thereby and at last when the chunk was removed it was already late and the displacement of retina had occurred rendering him blind of his left eye. This drop of chunk of nucleus was also admitted by Dr. Kundu in his evidence. He further admitted that neither Dr. Varghav nor he attempted to remove the said chunk of the nucleus . On that day i.e 02.09 03 . He discharged the complainant from the hospital on 3.9.03 by issuing a discharge certificate which however , remained silent regarding the fact of dropping of chunk of nucleus . It was definitely a mistake and negligence on his part. In his cross examination Dr. Joydev Kundu (OP-2) also admitted that the only Vitrectomy machine which was in the hospital on that day and which was essential for removal of the chunk of the nucleus was out of order on that day. This was informed to the hospital authority verbally. He further admitted that nature of operation undergone by patient was mentioned in the discharge certificate along with post operative advices. He further admitted that he had discharged the Complainant from the hospital on 3.9.03 issuing the discharge certificate where the fact of dropping of chunk of the nucleus was not recorded as attempt was made to remove the said chunk of the nucleus . He advised the patient to report to the hospital later after a week. As per evidence of Sri Manaj Kr Chakrabarty, Manager of the Hospital victrectomy machine was defective on 2.9.03. It was practically a deficiency on the part of the hospital in not maintaining the important machine in question for which the Complainant/ patient was asked to come to the hospital after 7 days. As a result the patient had to bear with complications in his left eye which could not be redressed before 27.9.03 when OP –3 Dr. Usha Varghav removed the Nucleus Chunk from the vitreous cavity of the left eye of the patient. Thus it is manifest that at least vital 25 days were lost due to sheer callousness and negligence on the part of the hospital authority and both the treating doctors , - Dr. Joydev Kundu and Dr. Usha Varghav . Practically the patient was treated in a most inhuman way. On 16.9.03 the patient was re-admitted for vitrectomy surgery when at the OT in the midway of the operation it was found by the operating surgeon Dr. Mrs Varghav that vitrectomy machine was out of order and again on 18.9.03 the said machine was found out of order. The Indian Journal of Ophthalmology [year : 1999/Volume: 47/ issue : 3/ pages 173-176] dealing with incidence and management of posteriorly dislocated nuclear fragments following phacoemulsification speaks of development of complications in case of delay in vitrectomy. It is quoted below (4 of 6):

“ The optimal timing of vitrectomy has been a matter of debate. To avoid the cycle of progressive lens-induced inflammation, the best time of vitrectomy is at the same sitting as the cataract surgery. This may not be practical due to non-availability of a vitreoretinal surgeon or the anaesthesia wearing off. A delay in vitrectomy of more than 3 weeks could cause an increased incidence of chronic Glaucoma …. It has been suggested that a delay up to 3 weeks is acceptable”. In the instant case we found that about 26 days were lost before taking up vitrectomy operation by Dr. Varghav. We have reasons to infer that this inordinate delay of more than 3 weeks brought about the incurable complication leading to blindness in the left eye of the patient for which the two operating doctors and the hospital authority cannot eschew their responsibility.

We have heard the contesting parties to this case at length and have perused the impugned judgement of the Forum below along with other written submissions of the parties to this case. Dr. Kundu OP No –1 and the Appellant in case no 485/08 was the principal operating surgeon under whom the Respondent No-1 was admitted for cataract operation in his left eye. Obviously the operation was not fully successful as we found that a chunk of nucleus got dropped in the vitreous cavity of the left eye of the patient. The Operation was done on 2.9.03. The vitrectomy surgery could have been done on the same day i.e on 2.9.03 if Dr. Kundu had referred the case to Dr. Varghav on the same day itself. No proper explanation could be advanced by Dr. Kundu for not doing so. Moreover, Dr. Usha Varghav could have done the vitrectomy surgery on 3.9.03 as she had performed same type of surgery on 3.9.03 upon one Marzina Bibi. This clearly showed that the vitrectomy machine was functioning properly on 3.9.03 ( statement on oath by the Appellant in case no 492/08 ). Further, the patient was admitted on 16.9.03 and taken to OT on 17.9.03 but the machine stopped working during operation. We feel that both the doctors were callous and indifferent to the sufferings of this pretty aged patient. Both the doctors had knowledge that the machine was not properly functioning. They could refer the patient to some other hospital for better management. We have seen that Dr. Kundu had referred the patient to Disha Eye Hospital at Barrackpore when the complications grew beyond his control. It was also a lapse of both the doctors. Obviously both the doctors were very casual and showed their negligence towards their medical responsibilities. They cannot therefore avoid the charge of negligence. The hospital authority was also found negligent in maintaining an important machine like the vitrectomy machine. It was their duty to keep the machine in order. They had technical persons to help them in such matters. Due to non functioning of the said machine the surgery could not be performed. The bed head ticket was also not properly maintained. The Complainant could not get the bed head ticket for which they were deprived of the opportunity to look into the bed head ticket in question. We hold the hospital authority negligent for keeping the aforesaid important machine idle and inoperative for a considerable period of time. Sum total of the gross negligence and laches on the part of the surgeons and the hospital authority resulted in rendering the ill fated patient to lose his vision of the left eye permanently . The impugned judgement of the Forum below does not, therefore, warrant our interference excepting the part of its order relating to compensation and cost which seem to be rather on the high side. Both the Appeals, therefore, succeed in part.

It is accordingly ORDERED that both the Appeals are allowed in part on contest. The impugned order of the Forum below be affirmed with the modification that its order relating to compensation and cost be modified as under :-

The Appellant in Appeal No. FA/08/492, i.e. Netaji Eye Hospital, shall pay Rs. 50,000/- (Rupees fifty thousand only) as compensation to the Respondent, Sri Rabindranath Pal, along with a cost of Rs. 1,000/- (Rupees one thousand only). Dr. Joydev Kundu, Appellant in Case No. FA/08/485 and Dr. Usha Varghav, Respondent No. 3, shall pay Rs. 1,00,000/- (Rupees one lakh only) each as compensation to the Complainant/Respondent No. 1 along with cost of Rs. 1,000/- (Rupees one thousand only) each. The aforesaid amounts are to be paid within 45 (forty-five) days from the date of communication of this order, failing which interest @ 10% (ten per cent) per annum will accrue on the total decretal amount till realization.



This order, shall govern both the appeals being nos. FA/08/492 and FA/08/485 as they originated from the same order of the Forum below and the matters were identical.



Member President