Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 387 dt 22.11.2014
Mohd. Ayub son of Shri Ballu,
R/o H. No. 327, Mohd. Mirdgan,
B-13, P.S. Kotwali City, Bijnore …Complainant
Versus
OP1: xxx xxx xxx xxx
[name deleted vide order dated 27.11.2014]
OP2: Dr. Neera Agrawal,
Neera Eye Centre & Laser-vision,
91, B. Syam Lal Road, Opposite Hindi Park,
Darayaganj, New Delhi-110002
OP3: Dr. Shroff’s Charity Eye Hospital
5027, Kedarnath Road, Daryaganj,
Delhi-110002
OP4: The New India Assurance Co. Ltd.
2/2A, 3rd Floor, Laxmi Insurance Building
Asaf Ali Road, New Delhi-110002 ...Opposite Parties
Date of filing: 22.11.2014
Date of Order: 19.09.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
ORDER
Inder Jeet Singh , President
1.1. (Introduction to parties and their status) – The complaint was filed on allegations of medical negligence against OP1/ Dr T.C. Agarwal, Nav Jyoti Eye Center (who referred the patient/complainant to OP2) & OP2/Dr Neera Agarwal, Neera Eye Centre & Laser Vision, treating doctor. The complainant has alleged medical negligence against OP2 of damage to his right eye surgery because of wrong surgery, as so advised by doctors of Shroff Eye Hospital, Darya Ganj.
However, on the date of admission of complaint, OP1's name was deleted by order by Ld. Predecessors. OP2 filed written statement on 07.02.2015 and also an application order I rule 10 CPC with allegations that complainant's trouble emerged from surgery and treatment received Shroff Eye Hospital, Darya Ganj, let it be impleaded party to the complaint. The said application was allowed and Dr. Shroff Charity Eye Hospital, Darya Ganj was impleaded as OP3. Moreover, OP2 in her written statement also pleaded that she took insurance policy to cover her professional risks and perils, in view that the complainant had moved an application dated 09.11.2015 to implead the New India Assurance Co.Ltd. as party to complaint, it was allowed by order dated 15.11.2016, thereby it was impleaded as OP4.
Therefore, on the one side there is complainant and on the other side, there are OP2, OP3 and OP4.
1.2. (Introduction to dispute of the parties)- The complainant has grievances of medical negligence against OP2 that a wrong surgery was performed/treatment was given in respect of his right eye, which result into damage and lastly he lost vision of his right eye. The complainant seeks compensation of Rs. 12,00,000/- against OP2.
1.3. Whereas, OP2 has reservation that there was no negligence on her part, the best treatment was given to the complainant and subsequently the complainant was operated by OP3. The complainant was given Conservative Management for four weeks from his first consultancy on 15.10.2012 to 05.11.2012. The complainant had not reported to the OP2 and his condition had worsened at Shroff Eye Centre, the complainant was suffering from some infection, which did not respond to any treatment.
1.4. The OP3 also filed detailed reply, apart from application under Order VII Rule 11 CPC that neither there is allegation of medical negligence against him nor any relief was claimed by the complainant against OP3.
1.5. OP4, insurer of OP2, also opposed the complaint that neither any allegations are made against OP4 nor any relief. The complaint filed in November 2014 is barred by limitation vis-à-vis he was served with the summonses on complaint in December 2016, as such complaint is also barred against OP4.
2.1. (Case of complainant) – On 11.08.2012 the complainant visited OP1 for his eye treatment but OP1 referred him to OP2 being specialist. OP2 came with referral slip to OP2, he was charged Rs. 400/- vide receipt no. 10941 dated 15.10.2012, the complainant started taking medicine from OP2. He was issued registration cum OPD card no. 1696. On 05.11.2012 he was advised operation of his eye, for which he deposited Rs. 6,500/- vide receipt no. 11224 dated 08.11.2012. The OP2 wrongly and negligently operated an eye of the complainant, he became partially blind from right eye, the OP2 continuously charging consultancy fees even after damage to his eye. The complainant is a tailor master, he earns his daily livelihood by sewing work in a tailor shop but because of damage to his eye, he is unable to do his work efficiently. He has suffered huge loss and pain.
2.2. The complainant was not disclosed by OP2 the episode happened to his eye, the complainant was consulting the OP2, she was charging consultation fees regularly, when complainant relies and he requested the OP2, then complainant was asked to leave the clinic and to stop visiting her.
The complainant took advises from the doctor of OP3, then it transpired that there was wrong surgery by OP2 in his right eye, it has damaged completely and it cannot be recovered, which shocked the complainant. The complainant served legal notice dated 20.11.2013 through counsel on OP2, but there is no reply by the OP2 to this notice. That is why the complaint was filed.
2.3. The complaint is accompanied with registration card, receipts against fees, ultrasound, legal notice, AD card, certificate issued by OP2, photocopies of reports by OP1, noting and prescriptions from 15.10.2012 to 12.11.2012 by OP2 along with various receipts against payments, eye drops, medicine etc. It is also accompanied with discharge summary dated 10.12.2012, 15.12.2012, 04.07.2013, 13.08.2013 and medical report issued by OP3 besides other copies of bills and pathological tests.
3.1 (Case of OP2)- The OP2 opposed the complaint by filing compact reply, briefly the complainant had treatment from OP1 from 11.08.2012 for a period of 2 months, however, having no relief the complainant was referred to OP2, since she is trained at LV Prasad Eye Institute and she is capable of handling such cases.
It was 15.10.2012 when complainant came to OP2 first time, he was given Conservation Management for four weeks till 05.11.2012. The complainant was discussed his condition during that period, with an option that he is free to seek second opinion at any time and OP2 had not given any false assurances to the patient; he was furnished detailed report as and when asked for. As per the case history of complainant being maintained by OP3, it also shows that surgery was done to remove intra-ocular foreign body from interior chamber, which is an acceptable norm since reaction in the eye was not going down with medication. However, the removal of foreign body from anterior chamber cannot harm the eye.
The patient was operated at OP3, he could see light in his eye as per the reports of OP3. The medical treatment being given at OP3 Centre but the condition worsened. Subsequently multiple surgeries were done at the OP3/Shroff Eye Centre but the complainant did not respond. It can be assumed that complainant was suffering from some infection, which did not respond to any treatment. In fact, the treatment being given at OP3 Centre subsequently, was same what was being given by OP2 for anti-bacterial and anti- fungal treatment, which is standard care requirement for such patient.
The OP2 denies all other allegations made in the complaint while supplementing that OP2 is insured with New India Assurance Co. for the professional risk, the liability, if any, would be of insurance company as policy was obtained for period 28.11.2014 to 27.11.2015, which has been effective since 21.11.2011. Moreover, OP2 also took the objection that complaint is bad for non-joinder of Shroff Eye Centre (since OP3).
3.2. (Case of OP4)- OP4 filed the reply, being Insurer of OP2 and the complaint is opposed that it is not maintainable. Firstly, there is no privity of contract between the complainant and the OP4, there is no deficiency of services and the complaint is barred by prescribed period of limitation as complaint was filed in 2014 but the OP4 was served with the notice in December 2016.
As appearing from the record, the complaint is not supported with any medical expert opinion and in its absence the complaint is not maintainable. The complainant was advised by OP2 for necessary follow up, however, the complainant did not turn up for appropriate follow up vis-à-vis there is no specified allegation of negligence against treating doctor, it does not make out case of any relief, (reliance is placed on Kusum Sharma and Others vs Batra Hospital 2010(3) SCC 480 and Martin F.D. Soza vs Mohd. Isaad AIR 2009 SC 2049) since the complainant has been treating with all reasonable skill and competence. The complaint deserves dismissal. The reply is accompanied with copy of Professional Indemnity Policy for doctors and medical practitioners.
3.3. (Case of OP3)- The OP3 also opposes the complaint by filing reply, which is replica of separately filed application under Order VII Rule 11 CPC, that neither there is any cause of action disclosed against OP3 nor any claim has been made nor any relief has been sought against OP3, therefore, the complaint is liable to be dismissed. The reply also mentions case law Saleem Bhai vs State of Maharashtra 2003 1SSC 557 and Vinitha Ashok vs Lakshmi Hospital 2002 (1) CPJ 4 to fortify its contentions. The complaint deserves dismissal with cost for want of any case against OP3 (relying upon Brij Mohan Kher vs Dr. N.H. Banka I 1995 CPJ 99 NC).
4.1 (Replication of complainant) – The complainant filed replication to the reply of OP2, he reaffirms all the contents of complaint as correct that there was wrong surgery and negligence on the part of OP2. The OP3 have done their level best to correct the mistake committed by OP2. However, the OP2 is trying to shift her burden on OP3.
4.2. In replication to the reply of OP3, the complainant explains that its presence was necessary for adjudication of the complaint and that is why it was impleaded as a party to the complaint. The complainant came to know from OP3 about the negligence of OP2 in performing wrong surgery/treatment.
4.3. The complainant denies all the allegation of reply of OP4 by reaffirming the complaint as correct that there is cause of action against OP4, there is deficiency of services on the part of OP2, she was also negligent in treating the complainant and the complainant had followed all the review if and when asked for. The complaint is within the time and episode happened with the currency of insurance policy.
5. (Evidence)- Complainant Sh. Mohd. Ayub led his evidence by filing detailed affidavit on the pattern of complaint with support of documents filed with complaint.
OP2/ Dr. Neera Agrawal led her evidence on the lines of reply supplemented with noting and prescriptions from 15.10.2012 to 26.11.2012, copy of authorization for surgical treatment and copy of insurance policy.
OP3 also led its evidence by filing affidavit of Sh. Arun Kumud Arora, CEO of OP3, affidavit is reproduction of the reply to the complaint.
Lastly, OP4 led its evidence by filing detailed affidavit of Sh. Ganga Saran Bharti, Manager, the affidavit is repeat of reply.
6.1 (Final hearing)- The complainant, OP2, OP3 and OP4 filed their respective written arguments, which is compilation of pleadings and evidence.
6.2. The parties were also given opportunity to make oral submission, however, the complainant failed to appear and make submission despite general notice issued; the complainant was not served with such notice but his counsel was served. None appeared for OP2 make the submission. Sh. Naresh Pawar, Advocate for OP3 and Sh. Dheeru Nigam, Advocate for OP4 made their respective submissions. Although complainant and OP2 failed to make the submission, however, their record will be considered.
7.1 (Findings)- The contentions of both the sides are considered keeping in view the material on record, case law and the provisions of law (including Order I Rule 10(5) CPC and section 21 of the Limitation Act).
7.2. The OP4 has taken objection on the point of limitation on two counts viz (i) the complaint is based on alleged treatment in August 2012 but complaint was filed in November 2014 & (ii) the OP4 came to know about it first time in December 2016, when notice on complaint was received; thus complaint is barred by time and especially against OP4. The complainant opposed it. He took treatment from October 2012 to November 2012 from OP2 and then from OP3, when it was revealed that surgery was wrongly performed. It happened within the period of insurance policy.
To answer this issue, it needs to refer to the record. The complaint had gone to Dr. T.C. Agwarwal, Nav Jyoti Eye Hospital (erstwhile OP1) in August 2012 and not to OP2. He had visited OP2 on 15.10.2012 and remained under her treatment till 18.11.2012. There is record of examination, prescription etc. of each visit from 15.10.2012 to 12.11.2012 and final prescription is of 18.11.2012, it was followed by certificate in which last examination is also mentioned. OP2 has also proved her record of last prescription/advises upto 26.11.2012. The complainant had gone to OP3 on 20.11.2012 and remained under its treatment (including right eye surgeries on 07.12.2012, 15.12.2012, 03.07.2012 & 13.08.2012) till 01.04.2013, for which he was issued certificate dated 27.04.2013. The complainant asserts many facts that he came to know during treatment from OP3 that there of wrong surgery by OP2. By computing period from duration of treatment from OP3, if complaint came to know of wrong surgery by OP2 , the complaint filed on 14.11.2014 is within two years. The complaint was within limitation period. The first issue stand disposed off.
The second issue pertains to OP4. It is matter of record that OP4 (Insurer of OP2) was impleaded by order dated on 15.11.2016 pursuant to complainant's application dated 09.11.2015, which was filed by complainant after plea of OP2 in her written statement dated 07.02.2015 that she has obtained insurance risk cover from New India Assurance Co. Ltd. Notice was issued to OP4 on 18.11.2016 for next date of 12.12.2016 and OP4 also asserts that it was served in December 2016. The OP4 in fact took plea of Order I rule 10(5) CPC r/w sec. 21(1) of the Limitation Act, 1963 that when defendant (OP4 herein) is added then proceedings shall be deemed to be have begun on the service of summons (notice herein). Thus prima facie it appears that OP4 was served in December 2016 and by computing the period from date 27.04.2013 of certificate issued by OP3, the complaint is beyond period two years, which ends on 26.4.2015. However, there is proviso to section 21 of the Limitation Act, 1963, it cannot be ignored, which mandates that in case there was mistake or bona-fide, then party so added, then suit shall be deemed to have been instituted to earlier date than the date of service. In the present complaint, the complainant was not aware that OP2 has professional insurance cover against risks, it came to the knowledge of complainant after filing of written statement by OP2. Then complainant took cognizance of it and applied for impleadment of OP4. Therefore, OP4 was deemed to have been impleaded from the date of complaint. The complaint cannot be treated to be barred by time against OP4. This contention also disposed off.
7.3.1 When the complainant remained under treatment of OP2, the OP2 has used the following expression/terms in the medical papers and certificate issued, some of those terms with meanings are mentioned below -
Iris - The iris is the coloured part of the eye. The muscles in iris control pupil (the small black opening that les light into eyes).
Epithelial defect - it means corneal epithelial defect are focal area of epithelial (outermost corneal layer) loss, they can be due to mechanical trauma, surface trauma, eye-rubbing, lid mal-position, medication toxicity, corneal dryness, neurotrophic disease post surgical changes, infection or any other of a variety or etiologies.
Hypopyonand - hypopyonand is usually associated with stormed infiltration (bacterial viral and fungal ulcers)
Bacterial keratitis - it means infection of cornea (the clear damage covering the colored part of eye) that is caused by bacteria
KP (keratic precipitates) - keratic precipitates is an inflammatory cellular deposits seen on corneal endothelium. Acute KPs are white and round in shape, whereas old KPs are faded. [formation of KP is a characteristic finding in various forms of intraocular inflammation, including uveitis and corneal transplanterejetion. Generally KP are created by the clustering of cells with adherence to the corneal endothelium.
Intra ocular pressure (IOP)- IOP is the fluid pressure inside the eyes. As pressure is a measure of force per area, IOP is measurement involving the magnitude of the force exerted by the aqueous humor on the internal surface area of the interior eye. Eye care professionals use Tonometry method to determine it. Generally normal IOP is between 10mmHg and 20mmHg [average 15.5mmHg with fluctuation of +2,75mmHg.]. However, it decreases in age above 60s.
Raised intra ocular pressure (IOP) - Ocular hypertension is when the pressure inside the eye (IOP) is higher than the normal. With colour hypertension, the front of the eye does not drain fluid properly. This causes high pressure to build up. Higher than normal eye pressure can cause glaucoma.
FB sensation (foreign body sensation) means- if one feels like something is rubbing against one's eyes when one blinks, it is called foreign body sensation. During each blink, the upper eye-lid moves down over the surface of the eye and is cushioned by the lubrication of the tear film
7.3.2. The OP3 has used the following expression/terms in the medical reports and surgery papers of complainant, some of those terms with meanings are mentioned below -
Surgery TH PK + ECCE means Extra Capsular Cataract Extraction, it refers to the technique in which a portion of anterior capsule of the lens is removed, allowing extraction of the lens nucleus and cortex, leaving the remainder of anterior capsule, the posterior capsule and zonular support intact.
AC Reformation - an anterior chamber reformation is performed under tropical anesthesia which means that eye drops are used to numb the eye.
PR accurate in right eye means projection of rays and it was at meter.
Absolute glaucoma S/P PK means an eye has lost all vision and has uncontrolled pressure is sometimes referred to as having 'absolute glaucoma', in such situations, the mechanism of underlying pressure elevation may be apparent. However, damage caused by glaucoma cannot be reversed but glaucoma is treated by lowering intra-ocular pressure.
TRAB+ MMC means Trabeculectomy is performed as a treatment for glaucoma to lower the IOP. Mitomycin C (MMC) is an antimetabolite used during the initial stages of trabeculectomy to prevent the excessive post operative scarring and thus reduce the risk of failure.
Aphakia - means missing the lens in eyes. Ahakia is most often caused by surgery for cataracts. Aphakia can also result from dislocation of one or both lenses as a result of trauma. [In the present case it was explained on behalf of OP3 that lens was removed to prevent spread/acceleration of further infection being medical need].
7.4. By taking into totality of the circumstances, the following conclusions are drawn:-
(i) The complainant in his complaint, replication to the reply of OP3 and also replication to the reply of OP2 maintains throughout that there is no negligence on the part of OP3.
(ii) The complainant was operated by doctors of OP3 on 08.12.2012 for right eye, TH.PK+ECCE, on 15.12.2012 for AC Reformation + Resuturing, on 03.07.2013 Repeat PK+ AV and 13.08.2013 TRAB + MMC.
(iii) The complainant has also not made any specific claim/ relief against OP3.
(iv) The complainant has filed record of OP1, one of them is of 28.09.2012, but none of them mentions the actual complains of complainant but prescription.
(v) The complainant has proved proceedings and prescription from 15.10.2012 to 12.11.2012 and OP2 also proved prescription and proceedings from 15.10.2012 to 26.11.2012 that complainant reported to OP2 with redness, pain, F.B. sensation, mild swelling in right eye since ten days and thereafter the complainant was prescribed medicines from time to time. The OP2 had also issued certificate about the eye drops prescribed or withdrawn etc.
The OP3 has also issued medical report in detail that complainant reported to it on 20.11.2012, since he was having pain and watering in the right eye for the last 12 days, he was on prior medication. The surgery performed by OP3 has already been detailed in (ii) above.
(vi) There is no report or any observation in the record prepared and issued by OP3 nor any opinion to infer negligence or wrong surgery on the part of OP2 or wrong treatment was rendered. What appears the same set of medicine were being advised by the OP2 which were advised by the OP3 to be used for anti-bacterial and anti-fungal. Although, multiple surgery were performed at the Centre of OP3.
7.5. By reading sub-clauses (i) and (iii) above, it does not prove any medical negligence on the part of OP3. Thus complaint is dismissed against OP3 and consequently application under Order VII Rule 11 CPC stands disposed off.
7.6. By reading sub-clauses (v) and (vi) above, it does not prove any medical negligence against OP2 nor wrong surgery/treatment by the OP2. Consequently there is no vicarious liability arises against OP4. Thus, complaint is dismissed against OP2 and OP4.
7.7. In view of the above the complaint fails. The complaint is dismissed. No order as to costs.
8: Announced on this 19th September, 2023 [भाद्र 28, साका 1945].
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Vyas Muni Rai] [Inder Jeet Singh]
Member President
