Sri. Apurba Kr. Ghosh............President.

The Complainant has filed this case against the OP and prays for the following orders/reliefs:-

1. Direction against the OP to refund the sum of Rs. 33,000/- to the complainant.
2. Direction against the OP to pay a sum of Rs. 10,00,000/- to the complainant for causing mental agony and harassment caused to her.
3. Direction against the OP to pay litigation cost.

BRIEF FACT OF THE COMPLAINT

1. That the complainant went to the OP on 17.11.2014 at Siliguri Greater Lion’s Eye Hospital Siliguri with a little pain in right eye but her vision was correct and after checkup she was suggested to do FUNDUS PHOTOGRAPHY (VR), OCT- OF BOTH EYE (VR) and on perusal of the report the OP advised the complainant for PPV Operation on right eye for getting relief from pain and thereby the complainant was admitted at Siliguri Greater Lion’s Eye Hospital Siliguri on 11.12.2014 / the OP completes the operation on 12.12.2014 during morning from 10:30 to 11:30 / after that operation the complainant was facing great trouble and she informed the ward nurse but Doctor did not visit her at the ward and she could not see in the right eye and she became blind.

2. That the complainant was discharge on 13.12.2014 but after two days of operation the complainant was facing continuous pain but she was advised to go there for checkup on 26.12.2014 / in the mean time she faced much pain as if something was coming out from her eye, then she contact with the hospital over phone for an appointment but she was directed not to go there prior to 26.12.2014 and during the 15 days the complainant was in great trouble.

3. That on 26.12.2014 the Complainant went to the OP with tremendous problem and after examination of the eye the OP advised for second operation , to be done on 29.12.2014 but the complainant told him that she was not be able to pay the expenses and she asked the OP as to why there is necessary for holding second time operation within 15 days and asked the OP whether the first operation was wrong . The OP then told the complainant that he will do the operation free of cost and thereby the complainant was again admitted in the Siliguri Greater Lion’s Eye Hospital Siliguri on 28.12.2014 and the OP completes his operation on 29.12.2014 but the problem was not improved.

4. That the complainant went to the OP and asked him about the problem of eye and vision and hearing the question the OP answered her that, -“You have another eye to see”. In the discharge report dated 30.12.2014 the OP writes type of surgery “Treatment”.

5. That the complainant has also stated that, the first operation was wrong and to cover up the wrong treatment the OP did second operation on 29.12.2014 which affects her ear and she became 40% deaf and make her 90% handicap and the OP is responsible for her such situation.

In support of the complaint the complainant has filed the following documents:-

Hospital Outdoor ticket of District Hospital Jalpaiguri, Prescription of Dr. C.C. Mondal dt. 14.04.2014, Prescription on the letter head of Mechi Netralaya, Discharge summary report issued by Silguri Greater Lions Eye Hospital, Prescription dt. 13.01.2015 on the letter head of Siliguri Greater Lions Eye Hospital, Prescription of Dr. Sisir Mondal, Money receipts, Disability Certificate.

Notice was issued from this commission upon the OP and on receipt on notice the OP appeared through Vokalatnama, filed written version and denied all the material allegation of the complainant. In W/V the OP has stated that, the complainant has filed this case on some false allegations and the case is not maintainable as the complainant did not implead Siliguri Greater Lion’s Eye Hospital Siliguri as OP who is a necessary party of this case and she firstly examine the complainant on 17.11.2014 and she was referred to him for complaints of poor vision in her right eye  and on examination he found her best corrected vision to be 2/60 in her right eye and 6/18 in her left eye and she had already undergone cataract surgery in both eyes elsewhere and he diagnosed her to have MACULAR HOLE in her right eye which was confirmed by an OCT Scan and documented with FUNDUS PHOTO of both eye. The OP has further stated that, the contents of line no. 6 to 11 of the complaint petition are not fully correct and thereby not admitted by him and the treatment of macular hole is vitrectomy which was the standard protocol of treatment since 1990 and for which he advised her Pars Plana Vitrectomy for her right eye macular hole and she was operated after taking her consent on 13.12.2014, she was discharge after proper evaluation on 13.12.2014. The OP has further stated that, the statements made in line no. 1 to 6 of the page no. 2 of the complaint petition are false, incorrect and denied by him and in the discharge sheet of Siliguri Greater Lion’s Eye Hospital Siliguri clearly states that, patient must report in case of any pain, redness, or loss of vision after discharge and he personally informed and explained the patient of the same but the complainant has falsely stated that, she was asked not to come before 26^th/29^th December, 2014 which is a blatant lie as the emergency at Siliguri Greater Lion’s Eye Hospital Siliguri is open 24X7 and the complainant never reported at the emergency nor did she contact him of the hospital at any time after the surgery before 29.12.2014. The OP has further stated in the W/V that the statement made in 2^nd and 3^rd paragraph of page no. 2 of the complaint petition are totally false and incorrect and denied by the OP and when he saw the patient on 29.12.2014 she had only perception of light in her right eye and on examination she had hyphaema and there was iris tissue prolapse from the previous cataract wound and realizing that, her intraocular tissue was trying to get expelled via her old cataract wound he realized that, the only way to save the eye from expulsive haemorrhage would be to re-operate on the eye and suture the old cataract wound which was the reason for the second surgery. The OP has further stated in the written version she was not asked to pay anything on humanitarian grounds and it was the policy of the hospital management to call all surgeries done within payment as treatment which he is bound to follow. The OP has further stated in the W/V that, the statements made in 4^th paragraph of page no. 2 of complaint petition are false and denied by the OP and he lastly saw the patient on 13.01.2015 when her right eyeball was stable, vision in the right eye was perception of light only and he requested the patient to review him after two weeks but she never come back and he denied the allegation of the complainant that, due to eye surgery she became deaf and only to malign him the complainant has stated the same and there was no negligence or deficiency in service on his part in treating the complainant and the complainant is not entitled to get any compensation.

In support of the W/V the OP has filed the following documents:

1. Medical Literature on Idiopathic Macular Hole of the American Academy of Opthalmology.
2. Medical Literature on Vitrectomy for Idiopathic Macular Hole (Review) of Cochrane Library.
3. OCT (Optical Coherence Tomography) report of Shova Rani Shil dated 17.11.2014

Having heard the Ld. Advocate of both the side and on perusal of the complaint, written version as well as documents filed by the parties the following points are taken to be considered/decided by this Commission.

POINTS FOR CONSIDERATION

1. Whether the complainant is a consumer as per the provision of C.P. Act. ?
2. Whether the case is maintainable in its present form and prayer under the provision of the C.P. Act. ?
3. Whether there is any cause of action to file this case by the complainant?
4. Whether there was deficiency in service on the part of the OP as alleged by the complainant?
5. Is the complainant has able to prove this case and entitled to get any relief as prayed for?

DECISION WITH REASONS

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

The complainant was given opportunity to prove its case by producing her evidence. In order to prove the case the complainant herself has adduced written evidence in the form of an affidavit. In the written evidence the complainant has specifically corroborated the statements made in her complaint. She has specifically stated on which day she went to the OP and on which day first operation was done  by the OP no. 1. The complainant has further stated what complications had arisen after her first operation in the right eye. The complainant has also stated in her written deposition and in her written notes of argument that, she was compelled to go before the OP on 26.12.2014 when she was facing pain and getting loss of vision at that time the OP told that operation for the second time is necessary and on 29.12.2014 operation for the second time was done by the OP. The complainant has also stated in her evidence that, after second operation in her eye she became blind and to that effect the Medical Board of District Hospital, Jalpaiguri  has issued Disability Certificate in favour of the complainant.

At the time of argument Ld. Advocate of the complainant has stated that, the complainant has been able to prove the case against the OP and she is entitled to get the relief as prayed for. Ld. Advocate of the complainant  during argument referred decisions of Charan Singh – Versus – Healing Thouch Hospital & others 2000 SAR(Civil) 935 and AIR 1969 SC 635 in the case of state of Gujrat -  Versus – Shantilal Mangal Das.

To falsify the case of the complainant the OP has cross-examined the complainant by putting questionnaires. The OP has also filed written deposition in the form of an affidavit. In the written deposition the OP has specifically corroborated the written version. He stated that, he had done MS in Ophthalmology and has specialized in Vitero Retinal Eye surgery and he examined the patient clinically on 17.11.2014 and found a full thickness of macular hole in her right eye which was confirmed through the report of OCT. He further stated that OCT confirmed the presence of a full thickness macular hole in the right eye of the complainant and he advised the patient for PPV surgery (pars plama vitrectomy surgery) as the same was the accepted treatment of macular homl. It is further stated in the evidence that, the complainant was operated on 13.12.2014 when the complainant gave her consent she was discharged after proper evaluation, her eye was stable and in the discharge sheet she was advised to report in case of any pain, redness or loss of vision but the patient never reported at the emergency nor she come to the Siliguri Greater Lions Eye Hospital before 29.12.2014. He further stated in his written deposition as well as in his written notes of argument that, he saw the complainant on 29.12.2014 when she had only perception of light in her right eye and he was of the opinion that to save the eye from expulsive hemorrhage there was only way to re-operate on the eye and suture the old cataract wound and the same was the reason for second surgery and there was no negligence or deficiency of service on his part and the complainant is not entitled to get any compensation.

At the time of argument Ld. Advocate of the OP argued that, the OP has been able to prove the fact that, there was no negligence or deficiency in service on his part. He further argued that, the answer given by the expert (HOD, NBMC & H) has supported the defence version and as per the opinion of the expert the choice of the OP in deciding the course of treatment was correct. At the time of argument  Ld. Advocate of the OP filed the following documents:

1. Medical literature on Ideopathic Macular Hole of the  Amirican Academy of Ophthalmology.
2. Medical literature on victrectomy for idiopathic macular hole (Review) of Cochrane Library.
3. OCT report of Shovaranishil dt. 17.11.2014

Ld. Advocate of the OP at the time of hearing of argument referred the following decisions:

1. AIR 2010 SC 806: Ramesh Chandra Agarwal  VS Regency Hospital Limited & Others.
2. 2005 CR Lj 3710 SC/ I 2005 CPJ 9 (SC) Jacob Mathew and State of Punjab and another
3. 2009 (2) CPJ 48 (SC) C.P. Sreekumar (Dr.) VS S. Ramanujam.
4. 2010 (III) CPJ I (SC) VS Kishan Rao VS Nikhil Super Speciality Hospital and another

By referring those decisions Ld. Advocate of the OP has also argued that, there is in need to hear an expert opinion where there is a medical issue and in the instant case the complainant did not produce any expert opinion and thus the case of the complainant has no legs to stand upon and he praying for dismissal of this case.

Having heard the Ld. Advocate of both the parties and on perusal of the written complaint, written version, evidence of the parties, questionnaires with its reply as well as written notes of argument it reveals that, the complainant was medically treated by the OP and there is no dispute in this regard.

It is also admitted fact that, firstly the complainant was clinically treated by the OP on 17.11.2014.

It is also admitted fact by both the parties that, the OP on examination of the complainant advised for the test of OCT and Fundus photo of both the eyes.

It is also admitted fact by both the parties that, the complainant was firstly operated by the OP and she was discharged on 13.12.2014.

It is also admitted by both the complainant and the OP that, in the discharge summery report dated 13.12.2014 the complainant was advisedto go to the hospital on 26.12.2014 for review/check up. It is further admitted fact that, on 26.12.2014 the complainant went to the OP andthe OP conducted second operation on 29.12.2014 . Only dispute in this case is that, whether the operation which was done by the OP negligently or with due care AND whether to cover up the wrong treatment during First operation and that’s why second operation was done by the OP and that’s why the complainant was not asked to pay any charges?

Now let us see whether the complainant has been able to prove its case or not.

In the case in hand the complainant in her complaint as well as in her evidence has stated that, after the first operation she was facing problem and informed the matter but she was discharged from the hospital on 13.12.2014. It is also corroborated in the evidence of the complainant as well as admission of the OP that, the complainant again went to the OP with eye problem on 29.12.2014 when theOP was of the opinion to re-operate on the eye and second surgery was done.

But in the case in hand it is not explained by the OP as to why at the time of first operation the OP did not take proper care and why there was in need to undergo second surgery within 15 days from the first date of operation.

The complainant by filing disability certificate (Annexure III) has stated that, she became 50% disable. From the said disability certificate it reveals that, the District Hospital, Jalpaiguri issued the said certificate stating by the medical Board that, the complainant is a physically (visionary) challenged person with 50% disability.

The OP himself in his written version as well as in his written notes of argument admits that the complainant was first seen by him on 17.11.2014 and she was referred to him for complainant’s of poor vision in her right eye the OP has also admits that, on examination he found her best corrected vision to be 2/60 in her right eye and 6/18 in her left eye.

It is also admitted by the OP that when he saw the complainant on 29.12.2014 she had only perception of light in her right eye from the said admission of the OP it is proved that, prior to first operation the complainant was having poor vision with 2/60 in her right eye and 6/18 in her left eye. But after the first operation done by the OP the complainant became blind which is admitted by the OP who stated/ admitted that, when he saw the patient on 29.12.2014 she had only perception of light in her right eye. That admission of the OP clearly presumes that, due to first operation which was done by the OP the complaint became blind and that’s why her vision 2/60 in her right eye and 6/18 in her left eye turned into only perception of light in her right eye. It is not explained by the OP how his patient who was admitted having poor vision turned into blind after the first operation done by him.

The OP in his written version and written notes of argument has specifically stated that, she was operated after taking her consult on 13.12.2014. But from the discharge summary report issued by the Siliguri Greater Lions Eye Hospital it reveals that the complainant was admitted on 12.12.2014 and surgery was done on 12.12.2014 and she was discharged on 13.12.2014 (Annexure-1-D). From the discharge summary report it can safely be presumed that the OP is so negligent and unmindful he stated as if the first operation was done on 13.12.2014 but the discharge summary disclosed otherwise i.e. on 12.12.2014.

In the case in hand we are of the view that the unfortunate loss of vision of the complainant was either due to failure of the doctor(OP) in not adopting reasonable skill or failure of duty of taking care. There ismuch possibility that, the damage to the right eye of the complainant must have occurred only due to surgical trauma and that had happened only at the time of first operation done by the doctor (OP) and that’s why the OP to cover up his negligent act done operation for the second time even free of cost.

It is needless to mentioned here that, the doctor (OP) had the duty of care to the patient (complainant) but the doctor breached that duty of taking care by not providing the appropriate standard of care and the said breach caused the blindness of an eye of the complainant and negligence on the part of the OP in conducting the surgery resulting in loss of vision of the complainant.

Considering all we are of the view that, the complainant has been able to prove her case against the OP and she is entitled to get the relief as there was deficiency in service on the part of the OP towards the complainant.

The decisions referred on the side of the OP are not applicable to the facts and circumstances of this case.

Hence,

O R D E R E D

That, the instant consumer case being in No. C.C. 121/2015 is hereby allowed on contest against the OP but in part.

The OP is directed to refund the sum of Rs. 33,000/- (Rupees thirty three thousand) only to the complainant which was received from the complainant and the OP is further directed to pay a sum of Rs. 1,00,000/- (Rupees One Lakh) only to the complainant towards compensation for deficiency in service as well as for causing mental pain, agony and cost of legal proceeding. The OP is further directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only in the Consumer Legal Aid Account of this Commission.

The OP is directed to pay the awarded amount within 45 days from this day failing which he will have to pay interest @ 7 % per annum with effect from this day till making payment of the entire amount and in that case the complainant will have the liberty to take proper steps against the OP as per law.

Let a copy of this order be given to the complainant and OPs free of cost.