(The complaint filed by the complainant before this commission against the opposite party praying to direct the opposite party to pay Rs.35,00,000/- towards compensation for total loss of vision in the left eye of the complainant and to pay Rs.5,00,000/- towards mental agony sufferings and to pay Rs.5,00,000/- towards deficiency of service and to pay costs. This complaint coming before us for final hearing on 06.08.2014 and heard the arguments on either side, perused the records and passed and passed the following order:)
A.K. Annamalai, Judicial Member
The complaint filed under Section 17 of the Consumer Protection Act, 1986.
1. The complainant filed this complaint praying for direction to the opposite
party to pay a sum of Rs.35,00,000/- towards compensation for total loss of vision in the left eye of the complainant and to pay Rs.5,00,000/- towards mental agony and sufferings and to pay Rs.5,00,000/- towards deficiency of service and for costs.
2. The gist of the complaint in brief as follows :
The opposite party conducted an eye camp on 19.4.2008 at Minjur in which the complainant taken part and after consultation by one Dr.Radha she was admitted with the opposite party’s hospital for the surgery on her right eye which vision was to be corrected. The surgery was conducted on 21.4.2008 and was discharged on 22.4.2008 and she was recovered from diminishing eye vision and subsequently her left eye was affected by cataract, and thereby on 28.12.2008 she was admitted for surgery at the opposite party’s hospital and surgery was done on 29.12.2008 and was discharged on 30.12.2008 with direction to come on for review on 6.1.2009. After returning the home the complainant developed swelling and left eye become watery and painful and she visited the hospital on 3.1.2009 and she was admitted with the hospital and Micro Biology result dated 3.1.2009 it was found positive Foe Fungal Elements present and she was discharged on 10.1.2009 after treatment. In the discharge summary it was mentioned tha
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the patient referred to outside for further management because cannot afford the surgery and she was directed to approach Shankara Nethralaya Eye Hospital for surgery. When she approached Shankara Nethralaya Eye Hospital for surgery cost was informed Rs.25,000/- being poor she got admitted in the Government Eye Hospital, Egmore on 12.1.2009 and was discharged on 10.2.2009 where they found out that the complainant eye was affected by fungus due to the alteration in the lens which was implanted on her eyes. Due to professional negligence of the opposite party, the complainant lost her vision while take care of the patient from the surgery till post operative care and hurriedly packed and sent home without taking minimum care which ultimately caused the loss of vision on left eye and also due to poor hygienic condition maintained by the opposite party’s hospital the complainant was made to suffer till her life time she cannot see the world and her left eye has become totally blind. The treatment given was not in the manner as prescribed in the medical standard and thereby alleged deficiency of service claiming direction for Rs.35,00,000/- towards compensation for loss of vision of her left eye and Rs.5,00,000/- as mental agony and another Rs.5,00,000/- towards deficiency of service with costs.3. The opposite party denied the allegations of the complainant in their written version contended that the hospital is one of the leading hospitals having finest medical facilities and trained medical professionals and it is known for its high degree of care and expertise. The level of care and attention that is bestowed on the patients admitted in the opposite party hospital is well recognized. On 19.04.2008 at the eye camp the doctors found that the complainant’s right eye had diminished vision and at the request of the complainant treatment was given and surgery was made on 21.4.2008 free of cost and she came voluntarily for the treatment of her left eye on 28.12.2008. After investigation she was advised to undergo cataract surgery with implantation of Intra Ocular Lens in her left eye and phacoemusification surgery was performed on 29.12.2008 under strict aseptic precautions by Prof.Dr.S.Venkatesh. As per the infection control policy followed by the opposite party hospital, only one table is permitted per operation theatre and disposed of immediately to keep away infection. Hence the possibility of getting infected at the opposite party opposite party is totally impossible. On 30.12.2008, after giving instructions she was discharged and her anterior segment examination was normal. On 3.1.2009 the complainant visited the hospital with complaints of severe pain and diminished vision and which was diagnosed that the complainant suffered from endopthalmitis. Based on the recommendations given in the Endopthalmitis Vitrectomy Study the complainant was started on appropriate medication. The culture and sensitivity test revealed fungal etiology for endopthalmitis. The endophthalmitis Vitrectomy study states that most isolates causing clinical endophthalmitis are introduced into the eye from the patients own conjunctival flora. The complainant was immediately administered intra vitreal antibiotics, topical antibiotics and antifungal treatment to arrest the infection and the treatment including the drugs were provided free of costs. The most possible cause of infection is the failure to adhere to proper hygienic practices like washing hands thoroughly with soap and water before application of eye drops, rubbing the eye by the patient, using dirty clothing like the tip of sari to wipe the eyes and / or failure to adhere to the recommended dosage schedule with respect to application of eye drops. There is no likelihood of any infection setting in due to any deficiency on the part of this opposite party hospital in view of the infection control policy with strict adherence to asepsis that is strictly followed. The complainant’s condition was closely monitored and showed only faint improvement till 8.1.2009. However, on 9.1.2009, the complainant complained of severe pain in the left eye and headache apart from vomiting. As the said condition continued, it was advised that the complainant had to undergo Vitrectomy procedure. As the facility of vitrectomy is not available in the opposite party’s hospital, the complainant had to be referred to an outside hospital for vitrectomy. When this was discussed with the complainant it was informed that the complainant could not afford the treatment at Sankara Nethralaya and she was therefore advised to go to Government Ophthalmic Hospital at Egmore, Chennai. As far as opposite party is concerned, all procedures are provided free of cost to the poor patients in respect of cataract surgery and the complainant being a poor patient, was also treated free of costs. Despite the advice and precaution taken at opposite party’s hospital, the complainant had contracted infection, which ought to be solely attributable to complainant’s failure to adhere to hygienic practices. In addition to the said failure on the part of the complainant, she had visited Government Hospital, Egmore only on 12.01.2009 after a lapse of nearly 2 days, thereby wasting valuable time to arrest the infection. It is quite unfortunate that, though there was no negligence on the part of this opposite party hospital, the complainant has alleged deficiency of service. The complainant’s condition was thoroughly investigated. The blood sugar level, blood pressure, intra ocular pressure and ECG were tested and found to be normal. Only on being satisfied with here fitness for surgery by local and systemic examinations, she was operated on 29.12.2008 by an accomplished Phaco Surgeon Dr.S.Venkatesh who has been performing the said type of surgery for the past 10 years. The complainant had treatment for her right eye in April 2008 in free of costs she regain complaint vision then she once again came for left eye defects in December 2008 for which appropriate treatment was given free of costs. In the records maintained by the hospital there is no mentioning of Sankara Nethralaya refereal. Considering the economic condition of the complainant, she was advised to go to Government Eye Hospital, Egmore which is pointed out in the Discharge Summary of the Government Eye Hospital. There could be a possibility of contamination in the eye due to lack of hygiene adherence by the complainant, as the time elapsed between the 1st discharge on 30.12.2008 and her visit on 3.1.2009 was more which is establishes clearly possibility of contracting infection due to non-adherence to the instructions given to her relating to proper hygienic after post operative care at the time of discharge she was having clear vision 6/6 and N6 and on the fifth day with complaints of redness and watering of left eye with hypopyon and exudates and she was promptly started on treatment based on EVS. Accordingly, she was supplemented with intravitreal Amphotericin-B which acts on fungus. This clearly proves that there has been no negligence on the part of the opposite party hospital. Hence, there is no deficiency of service on the part of the opposite parties and the complaint is to be dismissed.4. Both sides have filed there proof affidavits and on the side of the complainant Ex.A1 to A9 and on the side of the opposite parties Ex.B1 to B34 are marked.5. The following points are for consideration :1. Whether the complainant is not a consumer in view of the free service said to have been rendered by the opposite parties?2. Whether there is any deficiency or unfair trade practices in giving treatment to the complainant ?3. Whether the complainant is entitled for the direction of payment of Rs.35,00,000/- towards compensation for the total loss of vision in the left eye and to Rs.5,00,000/- each as mental agony and deficiency of service?4. To what relief ?6. POINT NOS.1 & 2 : In this complaint enquiry the complainant alleged at the earliest during the month of April 2008 she had consulted in the opposite party’s Ophthalmic Medical Camp held at Minjur for her right eye vision diminishing and had undergone surgery on 21.4.2008 and was discharged on 22.4.2008 fully recovered from said problem. Thereafter because of the treatment was given impressed with same she voluntarily approached the opposite party’s hospital for her left eye cataract on 28.12.2008 and she was operated on 29.12.2008 with the fixation of OCL and she was discharged on 30.12.2008 subsequently due to diminishing of vision and other trouble once again she approached the opposite party on 3.1.2009 and she was thereupon to 10.1.2009 and discharged for further treatment from outside source. These details are not disputed by the opposite party and the opposite party contended for all those treatment and consultations and surgeries they are not charged anything and they were all done at free of costs. This was also not denied by the complainant and the complainant also nowhere pleaded in her complaint that she has paid anything towards fees or charges for the treatment given by the opposite party and thereby it is clear that she had all treatments from the opposite party at free of cost and it is also elicited since for the further treatment due to “positive Foe Fungal” element present she has to be given vitreal for which vitrectomy treatment to be given and for the same and the opposite party having no such facility referred the complainant for further treatment which was taken at Government Eye Hospital, Egmore as per the document under Ex.A7 relied upon by the complainant. For this the opposite party relied upon the ruling reported in IV (2012) CPJ 227 (NC) in the case of Fakeer Chand –vs- Dr.Manish Shrivastava Eye Specialist, Raipur District Chhattisgarh in which it is held that in view of the free service done without obtaining any charges service provided in the camp or in the hospital with the analogy of the case of Indian Medical Association –vs- V.P.Shantha and Ors the complainant cannot considered as a consumer and thereby in this case also the ruling relied upon by the opposite party is aptly applicable, we are of the view that the complainant is not a consumer. For the next contentions that the opposite party negligence and deficiency in service in giving treatment to the complainant is concerned after having undergone surgery for her right eye in cataract on 29.12.2008 and discharged on 30.12.2008 and came back with the complaint of diminishing vision with pain on 3.1.2009 she was under treatment with the opposite party upto 10.1.2009 and during which course the opposite party diagnosed the symptoms due to Foe fungal for which the treatment suggested vitrectomy and this was referred under Ex.A7 as “left eye post operative fungal endopthalmitis” by the Government Eye Hospital, Egmore and also the medical records issued by the opposite party under Ex.A5 mentioning “patient to refer outside for further management because patient cannot afford the surgery and the name of Sankara Nethralaya, College Road, Nungambakkam” is separately written probably for the patient advise regarding name of the private hospital and under Ex.A6 Micro Biology Result shows “Positive Foe Fungal Elements Present” for which only Vitrectomy said to the treatment which was given by the Government Hospital as per Ex.A7 as the opposite party contended that such facility is not available with them. Whether there is any negligence during those period is concerned the opposite party relied upon the Medical Literature Vitrectomy surgery, Procedure, Recovery and Risks in which under……“Intraocular lens” it is mentioned as follows : (1) IOLs usually consists of a small plastic lens with plastic side struts, called haptics, to hold the lens in place within the capsular bag inside the eye (2) IOLs were traditionally made of an inflexible material (PMMA), although this has largely been superseded by the use of flexible materials. Most IOLs fitted today are fixed monofocal lenses matched to distance vision.After surgery, patients should avoid strenuous exercise or anything else that significantly increases blood pressure. They should also visit their ophthalmologists regularly for several months so as to monitor the implants. IOL implantation carries several risks associated with eye surgeries, such as infection, loosening of the lens, lens rotation, inflammation and night time halos, but a systematic review of studies has determined that the procedure is safer than conventional laser eye treatment. (3)Though IOLs enable many patients to have reduced dependence on glasses, most patients still rely on glasses for certain activities, such as reading.”And under the caption “What To Think About” it is stated as follows:“One of the main uses of vitrectomy is to remove blood from the middle of the condition called vitreous hemorrhage. When vitreous hemorrhage occurs, doctors may recommend waiting several months to a year to see whether the vitreous gel will clear on its own before they do a surgery that can have seric complications.But if the hemorrhage is causing severe vision loss or is preventing treatment severe retinopathy, surgery may be done sooner rather than later. Some stu…have shown that long-term results are better with early vitrectomy.There are a few ways to repair a retinal detachment. The chance that each surgery type can help restore good vision varies from case to case. The cause location and type of detachment usually determine which surgery will work. Other conditions or eye problems may also play a role in the decision.You may need more than one surgery to reattach the retina if scar tissue from first surgery grows over the surface of your retina.”Further they relied upon the rulings in (2007) CPJ 338 (NC) in the case of M.A.Ganesh Rao –vs- Dr.TMS Pai Rotary Hospital & Ors in which it is held as follows;“Medical Negligence –Eye operation –Patient developed cataract – operated upon – Operation unsuccessful – underwent correctional operation, discharged on 12.12.1998 – Normal vision of 6/6 regained – Patient had no complaint till 3.8.1999 – On this date eye sight totally blocked – Patient then referred to Sankar Netralaya, again operated upon, but could not gain vision –Nothing to show that removal of ball in eye due to surgeries conducted in OP.Hospital negligently – No expert witness to state anything about negligence committed by OP No.2-Absence of any specific negligence at any stage – Ops not liable-Complaint rightly dismissed.”In view of the above medical literature details and the rulings relied upon which are applicable in our case also since no expert witness was examined to show that only cause of the deficiency or negligence on the part of the opposite party during 10cataract surgery subsequent developments were caused was not proved and also as the opposite party contended as per the written version details and also the reply notice under Ex.A9 in para-9 “The complainant’s condition was closely monitored and showed only faint improvement till 8.1.2009. However, on 9.1.2009, the complainant complained of severe pain in the left eye and headache apart from vomiting. As the said condition continued, it was advised that the complainant had to undergo vitrectomy procedure. As the facility of vitrectomy is not available in the opposite party’s hospital, the complainant had to be referred to an outside hospital for vitrectomy. When this was discussed with the complainant it was informed that the complainant could not afford the treatment at Sankara Nethralaya and she was therefore advised to go to Government Ophthalmic Hospital at Egmore, Chennai. As far as opposite party is concerned, all procedures are provided free of cost to the poor patients in respect of cataract surgery and the complainant being a poor patient, was also treated free of costs.” and in para-12 in the reply as follows : “after discharge on 10.1.2009, though the patient was advised to continue treatment outside immediately, she had visited Government Hospital, Egmore only on 12.1.2009 after a lapse of nearly 2 days, thereby wasting valuable time to arrest the infection. In view of the above it is clear that any cause for alleged infection could be attributable solely to the attitude of the patient is having acted in disregard to the advise given by my client’s at the time of discharge.” As there may be possibility infection because of non adherence of post operative care by the patient since at the time of discharge after surgery on 30.12.2008 her vision was up to the normal 6/6 N6 and only after 5 days she came for complaints of pain for which also she was given treatment nearly for one week by the opposite party and referred for better management for the purpose of vitrectomy which was not available with the opposite party and thereby we are of the view that there is no negligence or deficiency of service on the part of the opposite party even though the patient was referred for better management as she cannot afford to meet out further treatment with cost which was not denied by the complainant and thereby we hold that the complainant is not a consumer under Sec. 2 (1) (d) and the opposite party is not a service provider under Sec.2 (1) (o) of the Consumer Protection Act, 1986 and there was no deficiency or negligence or unfair trade practice on the part of the opposite party in giving treatment to the complainant and these points are answered accordingly.7. POINT NO. 3 : Since we given findings in Point Nos.1 & 2 in favour of the opposite party and against the complainant the complainant is not entitled for any compensation towards loss of eye and she has also not filed any records to show that she was completely lost her vision on right eye. Even after taking treatment at Government Hospital under Ex.A7 and not entitled for any compensation for mental agony or deficiency of service as the complainant not proved her case and this point is answered accordingly.8. POINT NO.4: In view of the findings are adverse against the complainant and the complaint is not entitled for any relief as prayed for in the complaint and the complaint is liable to be dismissed accordingly,In the result, the complaint is dismissed as not proved and the parties are directed do bear their own costs.