SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 35 of Consumer Protection Act 2019 against opposite parties 1 to 3 to seek an order to pay compensation of Rs.50,00,000/- with interest towards deficiency of service, medical negligence and mental suffering despite cost of the proceedings.
The case of the complainant before the commission is that after retirement from service in the year February 2019, the complainant was experiencing some irritation in the right eye. Immediately, the complainant approached the OP NO.2 for proper diagnosis and necessary treatment. On the assurance of OP1, who had conducted surgery in his right eye in the absence of OP NO.3, the right eye vision will improve after a few months, he had to undergone several periodical check up at OP No.2 hospital on various days as prescribed by OP NO.1. But on 02/06/2020 OP No.3 informed during the removal of silicon oil put by OP No.1 to the right eye of the complainant, at the time of surgery, that the right eye sight is lost forever. Complainant’s right eye sight was lost permanently. This is entirely due to the medical negligence on the part of the OP No.1 by conducting surgery in a negligent manner. Thus the complainant suffered a permanent disability on account of deficiency of service and medical negligence. Hence this complaint.
Countering the case of the complainant, the stand of the opposite parties is that neither OP No.1 nor OP No.2 has ever breached the duty to take reasonable care due to which the complainant has suffered injury. OP No.1 has conducted the treatment to her beset efforts with due care and the course of the treatment is as per the medical norms. OP No.2 engages only highly qualified and experienced doctors to conduct surgeries on its patients. It is submitted that complainant came to the hospital of OP NO.2 for certain problems in his eyes on 22/01/2019. After proper examination the complainant was advised to undergo cataract surgery and Vitreoretinal surgery for his right eye and barrage laser for his left eye. It is pertinent to note that the complainant had a weakness in the layers of the retina when he came to OP NO.2 for examination which was the reason for the inferior retinal detachment in his right eye and the hole in the left eye. It is humbly submitted that the complainant after his preliminary eye examination on 22/01/2019 at the hospital of OP No.2, had undergone YAG laser surgery on the left eye during his subsequent visits. The complainant’s vision came down to 6/60 in his right eye on 12/02/2019. Further the complainant was diagnosed to have subtotal retinal detachment which means the maximum areas of the retina were detached from its attachment. Within a short span of 3 weeks time the inferior retinal detachment in his right eye went in for subtotal retinal detachment. It is submitted that the complainant was reviewed by the OP NO.1 after the surgery on 18/02/2019 and the retina was found well attached and was doing fine. Subsequently, the complainant was again reviewed on 22/02/2019 and 25/02/2019 and it was found that the vision was improving and everything was fine. The complainant was reviewed on 05/03/2019 and 18/03/2019 and his vision was improving up to 6/36 with pinhole 6/18. Again the complainant was reviewed on 25/03/2019 and 17/04/2019, the vision was 6/60 and the retina was on. Further, he was reviewed on 12/06/2019 and his vision was 6/60 and the OP No.1 noticed a macular pucker ( a layer of scar tissue that grows on the surface of the retina), but the retina was on. Further he was reviewed on 12/06/2019 and his vision was 6/60 and the OP NO.1 noticed a macular pucker (a layer of scar tissue that grows on the surface of the retina), but the retina was on. However, on 20/08/2019 during the review of the complainant’s right eye, it was found that his vision started coming down from 6/60 to 3/60 but the retina was on. It is submitted that the complainant’s vision dropped due to early proliferative vitreo retinopathy changes. On fundus examination, there was membrane formation at the macula causing a macular pucker. All these issues are very common after a cataract surgery or an injury or any other medical conditions affecting the eye and could be treated by a minor surgery if required. It is submitted that the OP No.1, an experienced vitreoretinal surgeon had rightly advised to the complainant for the right eye silicone oil removal + membrane peeling+pefluoropropane gas, under guarded visual prognosis which is the accepted practice and the standard medical protocol. However, the complainant did not undergo this procedure and was reviewed on 04/03/2020, wherein his vision was 3/60 in the right eye and there was epiretinal membrane under silicone oil and further found the macula lifted. But the complainant demanded only the OP No.3’s opinion who was actually on leave at that time and the complainant did not get the procedure done as advised. On 02/06/2020 the complainant finally consulted the OP No.3 but by that time the proliferativre vitreo retinopathy had progressed ie, macular gliosis had set in and vision had dropped further. This proves the fact that the complainant had damaged his eyes by his own actions. Later he even discontinued his treatments and follow-ups. It is further submitted that OP NO.1 and 2 have done their best in spite of the complainant’s bad retina, with multiple lattice degenerations and holes with subtotal retinal detachment in right eye. It is submitted that this is not a fit case of medical negligence. Hence, prayed for dismissal of the complaint.
Complainant has filed his chief affidavit and OPD summary issued by OP NO.2 on different dates. He was examined as Pw1 and the documents were marked as Ext.A1 series. Medical Board Report submitted by the medical board after examining the complainant is marked as Ext.X1. On the side of OPs, 1st OP filed her proof affidavit and was examined as Dw1 marked Ext.B1. After that the learned counsel of both parties filed written argument notes.
We have perused the records available before us and considered the submissions of both learned counsels.
It is seen that both parties have not led evidence any independent medical expert to prove their allegations and contentions. Ext.X1 medical Board report, it revealed that the complainant was suffering from Retinal detachment and cataract –Right eye, surgery done, vision in Right and left eye CFCF 6/6 and he is having 30% permanent visual disability. None of the parties examined any of the members in the Medical Board who issued Ext.X1 to clarify the contents in the report.
The submission of the complainant’s counsel was that, before the surgery on 22/01/2019 the vision of both eyes were normal 6/9. It can be seen from Ext.A1 series dated 22/01/2019. Complainant alleged that on the assurance of OP1, who had conducted surgery in his right eye in the absence of OP NO.3, that the right eye vision will improve after a few months, he had to undergone several periodical check up at OP No.2 hospital on various days as prescribed by OP No.1. But on 02/06/2020 OP No.3 informed during the removal of silicon oil put by OP No.1 to the right eye of the complainant, at the time of surgery, that the right eye sight is lost forever. Complainant alleged that his right eye sight was lost permanently due to conducting surgery negligently and inexperienced on the part of OP No.1.
On behalf of OPs, several decisions of the Hon’ble Supreme Court and Hon’ble National commission have been quoted. In “Lexman Balkrishna Josh (Dr) V Dr.Triambak Bapu Godbole (AIR 1969SC128) held.” “The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment implies that he possesses skill and knowledge for the purpose. When consulted by a patient, such a person was his specific duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, or a duty of care in administering that treatment. A breach of those duties gives the patient a right of action for negligence. The practitioner must bring a reasonable degree of skill and knowledge to is task and exercise a reasonable degree of care. Neither the very highest nor very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires”
We need to look at the facts of the present case in the light of the above norms as laid down by the Hon’ble Supreme court of India. From Ext.A1 series it is revealed that at the time of 1st examination (22/01/2019) the right eye sight was 6/9 in both eyes, but after 6 days from the surgery the right eye sight was diminished to 3/60.
OPs contention is that at the 1st time of examination itself the complainant was diagnosed to have cataract and inferior Retinal detachment in his right eye and retinal lattice degeneration in the left eye. Hence complainant was advised to undergo cataract surgery and vitreo retinal surgery for his right eye and barrage laser for his left eye. OPs 1 and 2 further submits that the complainant’s vision came down to 6/60 in his right eye on 12/02/2019. Further the complainant was diagnosed to have subtotal retinal detachment which means the maximum areas of the retina were detached from its attachment. Within a short span of 3 weeks time the inferior retinal detachment in his right eye went in for subtotal retinal detachment. Further submits that the retinal detachment is a major problem in the eye and the surgery is very delicate and was carried out at the highly technical hospital of the OP No.2 with expert surgeons in that particular specialty. OP No.2 have all the facilities and experts in their hospital at Hyderabad to perform the requisite surgery/operation.
Here complainant’s main allegation is that in the absence of OP No.3 doctor, OP No.1 without having much experienced, performed the eye surgery negligently. It is to be noted that OP No.3 has not contested the present case and remains as ex-parte. OPs 1 and 2 submitted that OP3 was on leave on the date of surgery and subsequent dates. But not established the said contention. Complainant alleged that the loss of eye vision of his right eye was informed to him by OP No.3 on 02/06/2020. The said allegation was denied by OPs 1 and 2. But the OPD summary dated 02/06/2020 shows that post OP check up was done by OP NO.3 Dr. Akbar Saleem and on that date VA was 2/60 in Right eye.
OPs 1 and 2 contended that the complainant’s vision dropped due to early proliferative vitreo retinopathy changes. On fundus examination there was membrane formation at the macula causing a macular pucker. But there was no evidence submitted from the side of OP 1 and 2. OPs 1 and 2 also not adduced any expert evidence with regarded to the condition of the complainant’s right eye. OPs 1 and 2 further submitted that the post operative issues happened to the complainant are very common after a cataract surgery and could be treated by a minor surgery if required. Further submitted that the OP No.1, an experienced vitreoretinal surgeon had rightly advised to the complainant for the right eye silicone oil removal + membrane peeling+pefluoropropane gas, under guarded visual prognosis which is the accepted practice and the standard medical protocol. Further stated that however, the complainant did not undergo this procedure and was reviewed on 04/03/2020, wherein his vision was 3/60 in the right eye and there was epiretinal membrane under silicone oil and further found the macula lifted.
But we can see the absence of the evidence of professional concern and follow up measures that would be required to rectify the damage. OP NO.1 claimed that she had necessary professional qualification ot treat the complainant. But, it is clear that, she did not bring the requisite skill and care to the treatment as would be expected of an ordinarily competent member of the profession.
For the reasons above, as per the view taken by the Hon’ble Supreme court of India, in the case as stated above, the OP No.1 has not bring the requisite skill and care to the patient (complainant), so hence there is medical negligence on the part of OP NO.1. Since OP NO.1 is an employee of OP No.2, there is vicarious liability on the part of OP NO.2 also. Since there is no allegation against OP No.3, OP NO.3 is exempted from the liability. Hence OPs 1 and 2 are jointly and severally liable for the damage suffered by the complainant due to surgery.
In the result complaint is allowed in part. Opposite parties 1 and 2 are directed to pay Rs.2 lakhs as compensation and Rs.25,000/- towards cost to the complainant. Opposite parties 1 and 2 are jointly and severally liable to party the awarded amount within one month from the date of receipt of the certified copy of the order. Failing which the compensation amount carries interest @9% per annum from the date of order till realization. Complainant is at liberty to file execution application as per the provision of Consumer Protection Act 2019.
Exts.
A1(series)- OPD Summary issued by OP No.2 (12 in numbers)
X1- Medical board report
B1- Case sheet (consent letter included)
Pw1-Complainant
Dw1- OP1
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
