Oral Order : (B.N. Rao Nalla, President)
This is an appeal filed by the Opposite party aggrieved by the orders of District Consumer Forum-III, Hyderabad dated 18.03.2015 made in CC No.1060 of 2010 in partly allowing the complaint and directing the Opposite party to pay the complainant a sum of Rs.3,00,000/- towards loss of vision permanently in her left eye on account of medical negligence, Rs.50,000/- towards mental agony and harassment suffered by the complainant, Rs.50,000/- towards medical expenses and Rs.50,000/- towards punitive damages, with interest @ 9% p.a. from the date of complaint i.e., 07.10.2010 till realization and costs of Rs.2,000/-, granting time of (30) days.
2) For the sake of convenience, the parties are referred to as arrayed in the complaint.
3) The case of the complainant, in brief, is that the complainant had approached the opposite party doctor for poor vision and cataract treatment of her left eye. After examination, the OP prescribed and advised her to purchase and use medicines, on 23.09.2008 for cure. But there was no development on account of use of medicines as prescribed by the OP doctor. Again on 01.10.2008, 03.10.2008 and 10.10.2008 she consulted the OP by staying at Hyderabad. Unfortunately, there was no improvement and not cured.
4) Accordingly, the doctor advised the complainant to undergo cataract operation. As advised, complainant got admitted in Jagadamba Hospitals, being run by the Opposite party, on 18.02.2009, as an in-patient bearing No.1679/2008 and cataract operation was conducted by the doctor on 19.02.2009 by collecting an amount of Rs.15,060/- vide bill No.2807 and was discharged by prescribing medicines. In spite of using the medicines as prescribed, there was no improvement in the eye-sight as against the same, the complainant completely lost eye-sight. When she approached on 21.02.2009, the OP reviewed on 24.02.2009, 06.03.2009, 17.03.2009, 19.03.2009, 07.04.2009, 29.04.2009, 25.05.2009 and 18.08.2009. On questioning, the OP informed that the sight will progress slowly. When contacted again, the OP doctor informed his staff not to allow the complainant to enter into the hospital.
5) When complainant got checked her eye with another ophthalmologist, he stated that she lost her eye-sight completely on account of negligence on the part of the doctor in performing operation using unhygienic instruments causing virus resulting in permanent loss of vision. The loss of eye-sight had occasioned purely due to negligence on the part of the Opposite party doctor. Hence, complainant got issued a notice on 03.08.2010 but the same was returned with an endorsement 'not claimed'. Hence the complaint with a prayer to direct the OP to pay compensation of Rs.5,00,000/-.
6) Opposite party resisted the claim by way of filing written version contending that the complaint is not maintainable either in law or on facts. The complainant was suffering from complicated cataract, therefore, the treatment, surgery and outcome of the same cannot be compared with that of senile cataract. Complicated cataract by definition means 'cataract developing as a result of disease in other parts of the eye', in this case, chronic iridocyclitis. In case of complainant, additional factor is history of hemorrhage (bleeding) in the eye a few years back which was treated elsewhere. She did not produce any record pf treatment given to her at that point of time. The status of retina in the eye could not be viewed due to dense cataract. Indirectly, an idea can be formed by testing perception of light and projection of rays. The other eye of complainant was showing new vessels over the retina (NVE). Few months were taken to treat her chronic iridocyclitis and stabilize her eye.
7) As perception of light was positive, she was advised cataract extraction to improve vision marginally and plan for the treatment of retinal condition to further improve the vision. In the first post-operative visit, the vision improved from perception of light to hand movements. Within first week of operation, she developed stroke (CVA) involving brain stem and she was put on anti-platelet drugs and anti coagulants in another hospital. In due course of time, she developed bleeding in the eye which may be due to above drugs. Other factors also may be responsible for this bleeding. These factors and her neurological status was responsible for her vision not improving further.
8) The allegation that she was not attended is false so also the non-usage of sterilized instruments. The OP is running the hospital from past 30 years and there was no complaint of inadequate sterilization at any point of time. Four months after surgery, she was examined by another consultant. In his observation, the operated eye still had perceptional light. There is no negligence on his part. There arose no cause of action and nothing is payable to the complainant. Hence, prayed to dismiss the complaint with exemplary costs.
9) During the course of enquiry before the District Forum, in order to prove her case, the Complainant filed her evidence affidavit as PW1, the affidavit of her husband A.Ram Murthy as PW2, the affidavit of A.Madhavi, her relative as PW3 and the documents Exs.A1 to A9 and on behalf of the Opposite party, Dr.Vittal Rao himself filed his affidavit evidence as RW1.
10) The District Forum after considering the material available on record, allowed the complaint bearing CC No.1060/2010 by orders dated 18.03.2015, as stated, supra, at paragraph no.1.
11) Aggrieved by the above orders, the Appellant/Opposite party preferred this appeal contending that the forum below (a) came to an erroneous conclusion that the evidence of PW1 to PW3 remains unchallenged in the face of the fact that PW1 failed to subject herself for cross-examination; (b) ought to have eschewed the evidence of PW1 as she failed to appear for cross-examination and should have proceeded to dismiss the complaint; (c) should have seen that the evidence of PW2 is inconclusive and did not support the case of the Respondent to prove the services rendered to be deficient or negligent in any manner; (d) should have seen that PW3 gave tailor made replies to interrogatories; (e) exceeded its jurisdiction in examining RW1, the appellant in open court and recording evidence by itself without appointing an Advocate Commissioner; (f) committed error apparent on the face of the record in giving a finding that the respondent approached another Opthalmologist at Mahesh Hospital as she lost the entire eye-sight while in-fact, she got admitted in the said hospital with cerebro vascular accident; (g) ought to have seen that the respondent suffered the said attack on 25.02.2009; (h) should have seen from Ex.A6 that no history of previous surgery was taken and as such, no special precautions were taken before using the said drugs which resulted in bleeding from the eye; (i) should have seen that respondent consulted the appellant for the last time on 18.08.2009 and thereafter did not contact any ophthalmologist upto 16.10.2010 on which date she approached doctors at Neo Retina Eye Institute and should have come to a conclusion that the loss of sight was due to lack of postoperative follow-up and not due to any negligence or deficiency on the part of the appellant; (j) should have seen that there is no nexus between the surgery performed by the appellant and loss of eye sight of the respondent; (k) should have seen that the Expert Committee report dated 01.08.2013 given by three ophthalmologists of Sarojini Devi Eye Hospital, Hyderabad stated that there is no evidence of medical negligence on the part of the appellant; (l) erred in not relying on the expert committee report dated 01.08.2013; (m) ignored the principles of law laid down by the Hon’ble National Commission in catena of decisions. Hence, prayed to allow the appeal and set aside the orders impugned.
12) The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
13) It is not in dispute that the Respondent approached the appellant doctor with a complaint of poor vision and cataract treatment of her left-eye on 23.09.2008. It is also not in dispute that the Appellant attended the respondent patient subsequently on 01.10.2008, 03.10.2008 and 10.10.2008. As there was no improvement on her physical condition, the appellant advised her to undergo cataract operation as early as possible. Accordingly, respondent was admitted as in-patient on 19.02.2009 and surgery was performed on her. It is also not in dispute that the respondent incurred an amount of Rs.15,060/- towards charges for her operation.
14) We may state that the duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain 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 the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.
15) In crystal clear terms, the RW1 appellant, in his cross-examination stated that after the treatment, a scan was taken to assess the retinal function and on examination he has come to the conclusion that the patient is fit for cataract operation. He advised the patient to take the fitness certificate from the General Physician and the patient produced the Certificate issued by General Physician, before him. But, for the reasons best known, he has not filed the fitness certificate issued by the general physician. He did not preserve the prescription given by the General Physician to show that PW1 was fit to undergo surgery for her left eye. This plea does not find place either in the written statement or in the evidence affidavit of the RW1 and this plea appears to have come-up with this plea in order to save his skin. Had really the patient obtained the Certificate issued by the General Physician, the appellant ought to have filed the same. It is also admitted by RW1 that there is no mention in the discharge summary that PW1 continued BP tablets as advised by the General Physician.
16) It was the specific case of the respondent that on account of used, un-cleaned and unhygienic instruments, virus caused loss of sight permanently as against which, nothing is brought on record by the appellant. In this regard, we may state that sterilization in Ophthalmic practice is compulsory. Decontamination, disinfection and sterilization are basic components of any infection control programme. Lack of knowledge or negligence in infection or standard practices would result in hazardous effects, as sterile instruments and environment are essential for successful eye care service. Sterilization is defined as the complete absence of any viable microorganisms including spores. The objective of sterilization is to remove or destroy microorganisms, since they cause contamination, infection and decay. The purpose for sterilization, the material to be sterilized and the nature of the microorganisms that are to be removed or destroyed decides on the methods of sterilization employed. Any sterilization process must be monitored by chemical and biological method. It includes pressure, temperature and other methods depending on the sterilization method. The sterilization procedure chosen should be appropriate for the item to be sterilized. Sources of infection to the outpatient are mainly due to the contamination on the surgeon’s and paramedics’ hands, tonometer, slit lamp, opened old medication bottles etc. The methods of Sterilization most commonly used are dry heat, wet heat and formaldehyde and gas. Admittedly, it is not brought on record on the part of the Appellant as to the sterilization of the instruments in the operation theatre. Proper design and maintenance of operating room is important to prevent transportation of micro organisms. Personnel who enter the operating rooms suite, contains large quantities of bacteria, in the nose and mouth, on the skin and on the attire, which may contribute to serious infections. Measures should be taken in order to follow the regulations in maintaining in the operation room. It is also essential to maintain the theatre discipline and to avoid unnecessary talking or movement in the theatre. Nothing is brought on record by the appellant that any of the above procedure was adopted. His entire written statement and the evidence affidavit is silent.
17) The appellant would also contend that the patient lost her eye sight due to cerebro vascular accident but the respondent could not bring any evidence on record to that effect. Even otherwise, he failed to examine Dr. Lakshman Rao, Civil Assistant Surgeon of Osmania General Hospital. While rendering deficiency of service and negligence on the part of the Appellant, the forum recorded its findings in detail which cannot be found fault with. By placing its reliance on various Judgments rendered by the Hon’ble Apex Court as well as the National Commission, it came to conclusion which do not require any interference. Even otherwise, the compensation awarded in the complaint which is under challenge in this appeal is just, reasonable and plausible in view of the fact that the respondent lost her eye sight. We may state that 'the eyes are the windows to the soul' is an expression that is often used to describe the deep connection one feels when looking into another’s eyes. However, like windows, the eyes work both ways. They are not only important in seeing into another person’s soul, but they are also vital in how we view the world around us. Sight and vision are important because they allow us to connec
Please Login To View The Full Judgment!
t with our surroundings, keep us safe, and help maintain the sharpness of our minds. Sight and vision are different entities. Sight is physical – it is a sensory experience in which light reflects off of shapes and objects and the eyes then focus this light. Signals are sent to the brain to be converted into images. Vision is how the mind, an aspect of the brain, interprets these images. Vision is a metaphysical concept. Sight may allow a person to witness an event, but vision helps the person understand the significance of that event and draw interpretations. The two are harmonious, and are very important in our everyday lives. Sight and vision help to connect people with their surroundings. Our world is filled with an extreme variety of colors, shapes, and patterns. Sight gives us the ability to perceive movement, and vision gives us the ability to make assessments about that movement. For example, you see a dog catch a Frisbee in the park, he brings the Frisbee back to his owner, and the owner gives the dog a pat on the head. Your vision tells you that this dog and this owner have a loving relationship, and that the dog enjoys playing in the park. Sight and vision are important because they bring beauty and understanding of the world to us. For the aforesaid reasons, we answer the point frame for consideration at paragraph No.12, supra, against the appellant and in favour of the respondent. 18) In the result, the appeal fails and is accordingly dismissed, but in the circumstances, parties to bear their own costs. Time for compliance : four weeks.