1 2 nd Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.1585 of Date of Institution: Date of Decision: Shri Guru Harkrishan Sahib (C) Eye Hospital Trust (Regd.) Sohana through its Chairman. 2. Dr. Deepesh R/o Dhaliwal House, H.No.16, Moti Bagh Colony, Patiala. Versus..Appellants. Swaran Singh S/o Sh. Ravail Singh, R/o VPO Gandir, Tehsil Bhogpur, District Jalandhar. Respondent. Before:- First Appeal against the order dated of the District Consumer Disputes Redressal Forum, Ropar. Shri Inderjit Kaushik, Presiding Member. Shri Piare Lal Garg, Member Present:- Ms Adarsh Pal Kaur, Advocate, counsel for the appellants. None for the respondent INDERJIT KAUSHIK, PRESIDING MEMBER:- This order shall disposed of two appeals i.e. First Appeal No.1585 of 2007 (Shri Guru Harkrishan Sahib (C) Eye Hospital Trust & Anr. Vs Swaran Singh) and First Appeal No.1612 of 2007 (Swaran Singh Vs Shri Guru Harkrishan Sahib (C) Eye Hospital Trust & Ors.), as both the appeal are directed against the same impugned order dated passed by the learned District Consumer Disputes Redressal Forum, Ropar (in short the District Forum ). The facts are taken from First Appeal No.1585 of 2007 and the parties would be referred by their status in this appeal.
2 First Appeal No.1585 of Facts in brief are that Sh. Swaran Singh, respondent/ complainant (hereinafter called as the respondent ) filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, the Act ) against the appellants, narrating that he visited the Eye Institute & Multispeciality Hospital at Sohana on for treatment for VSGL-axial Myopia (AL), ONH excavation, PVD, Cem+ and for PKP. On his 2 nd visit on , the respondent was asked to deposit a sum of Rs.5,000/- as charges for making the file and surgery of the respondent for Penetrating Kerato Plastic (P.K.P.). 3. The left eye of the respondent was operated upon for P.K.P. under local anesthesia on by Dr. Reeti Saini (not made party in appeal, but OP-2 in the complaint) and medicines were prescribed and Cornea Transplantation Operation was described as successful by the operating doctor. On his next visit on , the respondent was told that his left eye accepted the vision of 1/60 with lens of +8 strength. 4. On 8 th November, 2005, the respondent was asked to undergo another operational surgery of the left eye, as some complication has arisen and he was admitted in the hospital on and was operated upon for TPPVS-Buckle+PFCL+E/L with L/A on by another junior doctor Dr. Deepesh, appellant no.2 in the hospital. This surgery was a failure and detached Retina could not be attached with the technical process of surgery with the result that the respondent lost even the sight/vision of 1/60, the lowest in the table. This was the most unsuccessful and negligent operational endeavour on and Rs.5,000/- were charged as fee for the operation and surgery. 5. The respondent was again asked to further undergo the surgery for the serious complicated Retina Detachment Complication for which he was operated upon on again for PFCL removal+s.oil (LE with LA) by appellant no.2 which resulted in the loss of total vision of the left eye of the
3 First Appeal No.1585 of respondent. The respondent used the prescribed medicines upto the end of January, 2006 as advised by doctor and he always assured that the respondent will regain the vision again, but it proved to be false and deceptive and amounts to deficiency in service and unfair trade practice on the part of the appellants. Serious and prompt detachment of Retina within a short period of one month is a consequence of the first surgery and is contributed to the non-coverage of the obvious risk involved in the operation. This complication and consequent detachment occurred within a short period due to the lack of competence of OP-2, as the proper care and caution were not taken. The surgery done on 10 th October, 2005 for Cornea Transplantation was not very successful and permanent and in a month, detachment of the transplanted cornea resulted in consequential complication and again the surgery was conducted in November, 2005 when the respondent lost the total vision due to negligence of the appellants and its doctors. 6. The appellants did not obtain the consent for the second and third surgical operations on and respectively which was essential and the respondent was forced to undergo these surgeries inspite of his resistance. Appellant no.2 failed to apprise the respondent about the risks and possible consequences in the surgeries. 7. It was prayed that the appellants and OP-2 may be directed to pay Rs lacs as compensation for the total loss of vision which is incurable and the respondent has to suffer for the whole life, Rs.50,000/- for mental agony and harassment and Rs.25,000/- as litigation expenses. 8. In the written reply filed on behalf of the appellants and OP-2, preliminary objections were raised that the complaint is not maintainable and the respondent has not come to the Forum with clean hands. There was no negligence or deficiency in service on the part of the appellants. 9. On merits, it was admitted that the respondent visited appellant no.1-hospital on The respondent has copied down the report of ultrasound. In fact, he got Cataract Surgery done in the past from somewhere
4 First Appeal No.1585 of and was suffering from multiple problems in his left eye, for example, opaque cornea, myopia and glaucoma. Due to corneal degeneration, his posterior segment could not be seen properly, so scan USG was done and the report was handed over to the respondent and he was advised P.K.P. Guarded Visual Progress. In fact, the surgery conducted on the respondent was a very expensive surgery and he was charged only bare minimum expenses and the remaining entire expenses were met by appellant no.1, as the respondent was an old, poor and needy person. P.K.P. was conducted on The respondent was called for follow-up on and was found to have developed Retina Detachment which is a known complication of Myopia. He was advised for further surgery to settle the Retina. A liquid PFCL was installed into his eyes to settle the Retina and it was stage-1 of the surgical process. The liquid PFCL covers the eye and the hazy vision was due to the presence of the liquid. 11. The respondent has concealed the facts and has given distorted version. In fact, the procedure carried out in two stages on the respondent to settle the Retina was very expensive. He was given exemption of Rs.15,000/- and was charged only Rs.5,000/-. On , second step of the procedure was conducted. The liquid PFCL which was put to settle the Retina was extracted and Silicon oil was put in the eye. The respondent had the expected vision of PL & PR 4+ and maintained it for three consecutive visits on , and The appellants and OP-2 were not negligent and gave the best possible treatment. It was Retina and not Cornea that detached and proper treatment was provided and there was no lapse and the entire procedure was explained to the respondent and his attendant before conducting the surgery and their consent was obtained. When Retinal detachment was noticed on , the respondent was immediately advised surgery which consisted of two parties i.e. putting of PFCL and extraction of PFCL and putting of Silicon oil. Other allegations of
5 First Appeal No.1585 of the complaint were denied and dismissal of the complaint with costs was prayed. 12. In the written reply filed on behalf of the Oriental Insurance Company Limited (not made party in appeal, but OP-4 in the complaint) which was added later on, preliminary objections were taken that the District Forum is not competent, as complicated facts are involved. The OP-4 has issued the Medical Establishment Professional Negligence Errors & Omissions Insurance Policy No effected from to in favour of Shri Guru Harkrishan Sahib (C) Eye Hospital Trust, VPO Sohana, District Ropar and as per the policy, the liability of the insurance company is limited to Rs.10,000,000/. Intimation was not given to OP-4 and the respondent has no cause of action. 13. On merits, allegations of the complaint were denied and it was prayed that the complaint may be dismissed. 14. Rejoinder was filed in which the averments of the complaint were reiterated and that of the written replies were controverted. 15. Parties led evidence in support of their respective contentions by way of affidavits and documents. 16. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that there is no evidence to show that Dr. Deepesh i.e. appellant no.2 was competent enough, having obtained some degree from university or some fellowship or even some practical experience from some expert doctor in that branch at any point of time. It is not the case that such like Retinal Surgery was ever performed by him on any other person, except the respondent. Appellant no.2 did not have the requisite qualifications and he committed deficiency in service by conducting RD surgery of the left eye of the respondent, when he did not possess the expert skill and also did not take the informed consent of the respondent and appellant no.1-hospital is vicariously liable for the deficiency in service on the part of the appellant no.2.
6 First Appeal No.1585 of The complaint was allowed and the compensation of Rs.1.00 lac was awarded to the respondent and appellant no.2 was held liable to pay the said compensation to the respondent and the appellant hospital was held vicariously liable to pay the same. The liability of the appellants was joint and several and OP-4-Oriental Insurance Company will indemnify the claim of the appellant hospital. 17. Aggrieved by the impugned order dated , the appellants have come up in the present appeal, with a prayer to set aside the impugned order. 18. On the other hand, the respondent/complainant has filed cross appeal i.e. First Appeal No.1612 of 2007 (Swaran Singh Vs Shri Guru Harkishan Sahib (C) Eye Hospital Trust & Anr.), seeking enhancement of compensation. 19. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments filed on behalf of the appellants. 20. Neither the counsel for respondent nor the respondent himself has appeared at the time of arguments. 21. In the written arguments filed on behalf of the appellants, the pleas taken in the written replies were repeated. It was further submitted that RD is known complication of Mypio and the respondent was advised immediate surgery Vitrectomy which was performed in two parts. He was operated urgently to save his eyesight and if left untreated, would have led to blindness. The surgery was successful and the respondent maintained expected vision of PL+ and PR4+ till which was his last visit to the appellant hospital. The respondent has failed to prove negligence and has only presumed it. Expert opinion obtained by the respondent has nowhere pointed out any negligence or any deviation from the expected line of treatment and answers to Questions no.6, 8 and 10 fully endorse the line of treatment given to the respondent. The District Forum relied on the bald
7 First Appeal No.1585 of version of the respondent that the appellant no.2 is a junior doctor, but has not bothered to ask the respondent to prove as to how appellant no.2 was not competent. Appellant no.2 is M.S. Optholomology and has 10 years experience in the field of Retinal Surgeries. During fellowship period at Sydney Eye Hospital, he performed more than 300 Vitro Retina Procedures. He has worked with known authorities in the field of Retina like Dr. Jutin Playfair and Dr. Andrew Chang. He was awarded Visiting Scholar Safe Sight Institute by the University of Sydney. He has worked in Hinduja Hospital and has extensive experience in the field of Retinal Procedure. All surgical procedures are carried out after explaining the same and the consent of the respondent was received on Consent Forms Ex.R-4 and Ex.R-5. The rejoinder was filed after the evidence was led and the appellants had no opportunity to rebut the contents of the said rejoinder. The order passed by the District Forum is not sustainable in the eyes of law and the appeal may be accepted. 22. We have considered the written submissions filed on behalf of the appellants and have thoroughly monitored and entire facts, circumstances and record/material placed on the file. 23. The District Forum has observed that appellant no.2 was not competent to conduct the Retinal Surgery and did not take Informed Consent of the respondent and on these grounds, held the appellants liable. The version of the appellants is that appellant no.2 is M.S. Ophthalmology and has 10 years experience in the field of Retinal Surgery and he has also worked with the known authorities in the field of Retina. The consent was received on Consent Forms Ex.R-4 and Ex.R The respondent himself has placed on record Informed Consent Ex.C-28 as well as Ex.C-29 which was signed by the respondent along with the witnesses and vide these documents, consent was given for performing any medical or surgical procedure. Ex.C-30 is the certificate of appellant no.2 of Master of Surgery in Ophthalmology issued on , certifying that
8 First Appeal No.1585 of he has fulfilled the prescribed requirements in the year Ex.C-30A is the certificate of passing M.B.B.S. These documents are relied upon by the respondent himself. The appellants have also relied upon the Informed Consent Ex.R-4 and Ex.R-5, certificates Ex.R-6 and Ex.R-7 as relied upon by the respondent. The respondent sent the questionnaire for the expert witness about the Informed Consent. Dr. Devinder Kumar Arora, M.B.B.S. Ophthalmology replied as follows:- Informed Consent: Is given by the patient after understanding by the patient, of nature of condition, nature of proposed treatment, alternative procedure if any, risks involved in both procedure, relative chances of success or failure of both procedures so that he may accept or reject the procedure. Doctor to decide how much he can safely disclose, because patient may get unduly alarm and refuse leading to further aggravation of the disease, risks may be explained to the relative or kin, written consent is not necessary, but should be taken to proving in the court, if necessity arises, it should referred to one specific procedure, not blanket permission at the time of admission, should include phrases to confirm that the patient has been informed of nature of procedure before signing and witnessing taken place. 25. Question No.1 was as follows:- Question No.1: Do you think that retina problem of a patient is a serious problem to be tackled by an eye surgeon with special qualifications? 26. Answer to Question No.1 was as follows:- Answer: Yes. 27. Question No.2 was as follows:- Question No.2: When Silicon oil is injected in the eye of the patient, what kind of precautions are required to be taken and
9 First Appeal No.1585 of what kind of tests are to be conducted on the patient before conducting the final surgery? 28. Answer to Question No.2 was as follows:- Answer: Silicon oil is used as a temponad (support) to replace the detached retina in it s normal position, depending upon the type, size, extent of retinal detachment. No special precaution for the use of silicon oil. A and B ultra sound scanning and in direct Opthalomoscopy is done prior to detachment surgery. 29. Question No.9 is as follows:- Question No.9: Whether a person who has general qualifications in the subject of Ophthalmology and not much experience, do you think such a person would be competent enough to conduct the kind of operation which has been conducted in the case of the complainant or not? 30. Answer to Question No.9 was as follows:- Answer: No. 31. Question No.10 is as follows:- Question No.10: Is it necessary to get proper consent of the patient before conducting such a serious operation/surgery on the eye of a patient, when his other eye was completely blind? 32. Answer to Question No.10 was as follows:- Answer: Yes. 33. Question No.11 was as follows:- Question No.11: As it is clear from the medical history of the complainant that PKP had already been done in the case of the complainant and his retina had become very very weak, whether in such a case second PKP was possible or not? 34. Answer to Question No.11 was as follows:- Answer: Possible.
10 First Appeal No.1585 of Question No.13 was as follows:- Question No.13: When there is serious risk of a patient going totally blind, would any specialist take that risk or not? 36. Answer to Question No.13 was as follows:- Answer: It depends on the operating surgeon previous observations, long term follow up of the operated cases, retinal detachment itself is a serious condition threatening vision if untreated would lead ultimately to blindness specially in aphakic patients, so the risk is worth taking. 37. From the above replies of the expert, there is nothing to infer that appellant no.2 was not a qualified doctor to conduct retina operation. The expert Dr. Devinder Kumar Arora is also M.B.B.S., M.S. Ophthalmology and was posted as Eye Specialist, Civil Hospital, Rupnagar at that time. Likewise, appellant no.2 is also M.B.B.S., M.S. Ophthalmology and he obtained the degree of M.S. Ophthalmology in the year 2000, but pertaining to the year 1996 and the operation of the respondent was conducted on by Dr. Reeti Saini (OP-2, not made party in appeal) and the second operation was conducted on by appellant no.2. The actual problem started thereafter. As per the respondent, on , the respondent was told that his left eye accepted the vision of 1/60 with lens of +8 strength, but after the operation on and another operation on , he lost the total vision of the left eye. Dr. Devinder Kumar Arora was also examined in the Forum and his entire version and the said expertise absolutely failed when he in his cross-examination deposed that he himself had never conducted Retina Surgery. He could not have done this Retinal Surgery because he did not have any practical experience for the said surgery. Practically, such surgery is possible and such like surgery is being done in India as well as in the foreign countries. Consent of the patient for the operation can be taken orally also.
11 First Appeal No.1585 of Thus, the said expert himself has no knowledge about the Retina Surgery, nor he has ever done it. Therefore, no reliance can be placed on his statement. Nothing has come on the record that appellant no.2 did not adopt the correct line of treatment. Appellant no.2 is an expert in the Retinal Surgery and Annexure A-3 is the certificate given by the University of Sydney as per which appellant no.2 was admitted as a Visiting Scholar during the holding of the Sydney Eye Hospital Foundation Clinical Fellowship in Retina at Sydney Hospital/Sydney Eye Hospital and the certificate was also given to him for completing the terms of the position Clinical Fellow in Retina. Another certificate has been given by S.S.G. Alcon Phacoemulsification Training Centre, as per which he took the training from to The Aravind Eye Hospital & Postgraduate Institute of Ophthalmology, Madurai, India also gave a certificate, certifying that appellant no.2 has successfully completed the short-term training course on Lasers in Diabetic Retinopathy Management at Aravind Eye Hospital, Madurai from 1st October, 2001 to 28 th November, Veenu Eye Institute, Department of C.M.E. also certified that appellant no.2 has completed the Contact Lens Training Course from 1 st June, 1999 to 15 th June, Likewise, there are other certificates proving that appellant no.2 is a specialist in Retina Surgery. 39. From the above discussion, it is clear that appellant no.2 is expert in the field of Retinal Surgery and is Eye Specialist and has undergone a number of courses/training. Mere loss of eyesight itself is not a fact to infer that appellant no.2 was negligent in performing the operation. There is nothing on record to prove that appellant no.2 adopted a different line of treatment which was not, at all, provided. The District Forum has placed reliance on the evidence of an eye specialist, who has no experience in the field of Retinal Surgery and he himself admitted that he has never conducted any surgery of retina. The District Forum has based its order on the evidence of Dr. Devinder Kumar Arora and the fact that the respondent lost the eyesight, but what was the negligence on the part of appellant no.2 or he
12 First Appeal No.1585 of adopted a wrong line of treatment, is not mentioned in the order. Even otherwise, there is no evidence to prove any negligence on the part of appellant no Hon ble Supreme Court in case Kusum Sharma & Ors. Vs Batra Hospital & Medical Research Centre & Ors., 2010(2) RCR(Civil)- 161(SC), held that the doctor was not guilty of negligence when the hospital and doctors attended the deceased with utmost care, caution and skill and the doctor who performed the operation had reasonable decree of skill and knowledge and adopted the procedure which in his opinion was in the best interest of the patient. 41. Hon ble National Commission in case G.K. Rao Vs Bollineni Bhaskar Rao, AIR (2009) (NOC) 2816(NCC), dismissed the complaint holding that the complainant has failed to make out any case of medical negligence against the opposite parties. 42. In view of above discussion as well as at the law laid down, the appeal filed by the appellants is accepted and the impugned order under appeal dated passed by the District Forum is set aside. Consequently, the complaint filed by the respondent/complainant is dismissed. No order as to costs. 43. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellants in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days. First Appeal No.1612 of 2007:- 44. In view of the reasons and discussion held in First Appeal No.1585 of 2007 (Shri Guru Harkrishan Sahib (C) Eye Hospital Trust & Anr. Vs Swaran Singh), the First Appeal No.1612 of 2007 (Swaran Singh Vs Shri Guru Harkrishan Sahib (C) Eye Hospital Trust & Anr.) is dismissed. No order as to costs.
13 First Appeal No.1585 of The arguments in both these appeals were heard on and the orders were reserved. Now the orders be communicated to the parties. 46. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases. 47. Copy of this order be placed in case First Appeal No.1612 of 2007 (Swaran Singh Vs Shri Guru Harkrishan Sahib (C) Eye Hospital Trust & Ors.). (Inderjit Kaushik) Presiding Member September 19, (Gurmeet S) (Piare Lal Garg) Member
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