Asha Rani vs. Dr. Rohit Grover and others 1998 CCJ 100

Chandigarh State Consumer Disputes Redressal Commission, Chandigarh

Asha Rani, aged 58, a house-wife, went to Grover Eye and ENT Hospital, Sector 35-A, Chandigarh, on 10.3.1992 for the treatment of her eyes. She was examined by Dr. Rohit Grover and some medicines were prescribed. She was advised to come again on the following day and she was further examined on 11.3.1992 and 16.3.1992. The examination revealed that she required surgery of her left eye on account of 'glaucoma'. Such was admitted in the evening of 24.3.1992 as indoor patient and on the next day, here left eye was operated upon for glaucoma. However, after discharge from the hospital on 25.3.1992 and thereafter she contacted the opposite party on 27.3.1992, 30.3.1992, 31.3.1992, 1.4.1992 and 4.4.1992, but her eye-sight of the left eye did not revive. It has been alleged that the opposite party did not pay attention to the real problem of the complainant and acted in a haphazard and negligent manner in performing the surgery and there was want of post-operation precautions. It has further been alleged that during the follow-up, while she was still under treatment, she was operated upon thrice on the left eye between 9.4.1992 and 12.5.1992, but it was of no avail. The complainant has claimed damages to the tune of Rs. 9,99,000/- together with interest at the rate of 18 per cent per annum for the deficient service at the hands of the opposite party medical practitioner.

The opposite party, in the written statement, took a plea that the complainant was not a consumer. Besides this, it has been averred that after investigation, it was found to be a case of glaucoma in the left eye and the complainant was operated upon on 25.3.1992. The clinical examination indicated satisfactory progress when the bandage was opened and a fresh bandage was applied at 8 p.m. on 25.3.1992. However, on a subsequent examination of the complainant, the water level did not increase in the eye. The pressure in the eye started increasing and the interior chamber still remained flat and it was diagnosed as a case of 'malignant glaucoma'. Despite further treatment and application of mannitol 20 per cent and drosyn 10 per cent the water level in the eye did not come up. Such a situation arises only in rare cases. When the complainant was last examined on 4.4.1992, the water level in the eye was decreasing and there was no improvement. This was informed to the patient and her attendants from time to time. The opposite party also refunded the sum of Rs. 3,600/- by means of a cheque which he had received from the complainant. It has also been averred that opposite party is a 'Gold Medalist' from Delhi University in MS. Eye Surgery and possesses an experience of more than 5 years, besides the training during the period of his education. He had performed about 500 operations of this kind and in all he has performed about 10,000 eye operations and had also been holding 'free eye camps' from time to time. Even some cases have been referred to him by the PGI and Army Hospital with regard to certain tests and treatment. Nothing was haphazard in his hospital or performance of the operation now under consideration. There was on electric failure and the alternative arrangements always existed.

In the backdrop of these facts the Commission on held that we are of the view that a subsequent voluntary refund by a medical practitioner does not absolve him from the liability inasmuch as the cause of action arose on account of alleged deficiency put forward by the complainant has not been established. After considering all these details and aspects, we are of the view that the complainant failed to discharge the heavy onus of establishing negligence or deficiency on the part of the opposite party. The fact that in reality, it was found to be a case of malignant glaucoma, could not be fastened on the opposite party medical practitioner. The fact that the opposite party medical practitioner refunded the expenses incurred by the complainant by means of a cheque, is a circumstance which itself does not go against him. Accordingly, we hold that the complainant failed to discharge the heavy onus of proving negligence or deficiency on the part of the opposite party. The fact that in reality, it was found to be a case of malignant glaucoma, could not be fastened on the opposite party medical practitioner. The complaint fails and it is hereby dismissed leaving the parties to bear their own costs.

RECENT COPRA JUDGEMENTS

Bhiwani Dutt vs. Nehru Hospital of Post Graduate Institute of Medical Education and
Research and others 1999 CCJ 940

Chandigarh State Consumer Disputes Redressal Commission, Chandigarh

Bhiwani Dutt, aged 49 years, is a mechanic in Ordnance Cable Factory, Chandigarh. At about 3.30 p.m. on 14.10.1995, he had severe pain in his stomach. It was almost intolerable and he was immediately taken to the PGI, where he was examined and treated in the emergency ward. During this treatment he started experiencing internal burns in the entire lower portion of the left arm, besides feeling internal burns after sometime, he also gradually lost sensation. When he brought this misery to the notice of the doctors, he was told that it happened when glucose was being administered on his left hand. Thereafter on 13.11.1995, when the complainant was examined in the Neurology Department of the PGI itself, it was reported that left ulnar nerve could not be stimulated at any point indicating severe damage to ulnar nerve. Though the complainant had been running from pillar to post, yet to no avail and on account of the disability of the left hand, he has come forward with the present complaint and the losses suffered by him described in para 19 are reproduced as under:
"a) Lost his entire left hand which fails to hold anything for the entire life to come yet;
b) lost moral courage;
c) lost a lot of money and time;
d) lost charm in life;
e) lost the job opportunities;
f) attained the status of a physically handicapped because of permanent disability in the body;
g) exposed to lot of pain, tension, physical torture, etc., past and future."

In all, he has claimed a sum of Rs. 6,00,000 as damages.

A reply has been filed on behalf of opposite party Nos. 1 to 4. The plea of the opposite parties had been that a kind of presumptive diagnosis of perforation of duodenal ulcer was made on the basis of pain in the abdomen, fever, earlier history of ulcer and believing the complainant to be a chronic smoker. It has further been averred that the opposite party Nos. 2 to 4 did not come into the picture in respect of his treatment for the period from 14.10.1995 to 19.10.1995 inasmuch as he was under treatment in the surgical emergency. It has further been averred that the opposite party Nos. 2 to 4 were consulted for the first time on 19.10.1995. In the later part of this reply, the opposite parties have averred that the diagnosis of amoebic liver abscess was opined for the first time on 18.10.1995 after ultrasound and it was thereafter that on 19.10.1995 a 20 gauge needle was used for diagnostic aspiration of liver abscess. It has further been averred that the complainant started improving with the intravenous injections of antibiotics and other supportive measures provided to him in the surgery ward and after his admission into the gastroenterology ward. Subsequently, the intravenous injections of antibiotics were stopped and there was neither fever nor pain. It has also been averred that the compensation claimed should be actual loss caused to the complainant and it should not be imaginary and incredible.

After taking into consideration the fact that this disability of the left hand occurred to this 49 years old employee of the Ordnance Cable Factory while in the premises of the opposite party hospital, it is held that the opposite party No.1 is liable to pay damages and keeping in view the disability of the left hand, it is ordered that a sum of Rs. 1,25,000 shall be payable by it together with costs of Rs. 5,000. In case the damages are not paid within one month, the opposite party No.1 shall be liable to pay interest at the rate of 18 per cent per annum from the date of institution of this complaint till realization. The complaint stands disposed of.

RECENT COPRA JUDGEMENTS

Lakshmi Joy Prasad vs. D.R. Cameroon and others 1999 CCJ 1039

West Bengal State Consumer Disputes Redressal Commission, Calcutta

This is a petition of complaint under Section 17 of the Consumer Protection Act, 1986. The petitioner is one Lakshmi Joy Prasad, mother of one Ashish Prasad and the wife of Parameswar Prasad. The petitioner's case is that her son was admitted as a student of Class-I through the Assembly of God Mission of 125/1, Park Street, Calcutta-70017 at St. Andrews School, Ranchi, for prosecution of studies for the session 1994-95. The boy was 7 years of age and he was admitted as a boarder of the hostel of the said school. The opposite party No.1, D.R. Cameroon, is the Principal and proprietor as well as overall incharge of the school-cum-hostel. On 4.5.1995 the complainant got an information from the office of the Assembly of God Mission that her son faced an accident at the hostel and received an injury in his right eye on 2.5.1995 and that an operation was made on his eye on 4.5.1995 by the opposite party No.2, Dr. Brindaban Prasad Kashyap alias Dr. B.P. Kashyap, at his own hospital, i.e., Kashyap Eye Hospital at Purulia road, Ranchi. On the following day, i.e., 5.5.1995 all of a sudden at about 8 a.m. the petitioner's son was handed over to her by opposite party No.1 who had come to Calcutta with the child by leaving Ranchi on 4.5.1995 and reaching Calcutta by Hatia-Howrah Express train on 5.5.1995. It has been alleged that the opposite party No.1 hurriedly left Calcutta after handing over the child to the petitioner. It was noticed that the right eye of the petitioner's son was profusely bleeding and during the transit oozing out of blood from the affected eye increased on 5.5.1995. Condition of the child was further deteriorated and he was admitted in the Assembly of God Hospital and Research Centre at 125/1, Part Street Calcutta, where he was treated till 22.5.1995 and on the said day the boy was discharged without any further development of the injured eye although the doctor and the staff there did their utmost to cure the eye of the child.

Thereafter the petitioner and her husband moved every nook and corner for proper treatment of the injured eye of their son but no remedy was available from any quarter. Due to their poverty they could not approach any modern eye clinic for treatment with a more sophisticated instrument. According to the petitioner, it was a negligence on the part of both the opposite party Nos. 1 and 2 to discharge the boy at that stage and to bring him back to Calcutta in a most uncomfortable and cruel condition and on account of their negligence the unfortunate boy is going to lose his vision. The petitioner has accordingly made a claim of Rs. 4,00,000 each from each of the opposite parties in her petition of complaint.

The opposite party No.3, namely, the Medical Officer of Assembly of God Hospital and Research Centre was also made a party, but his name was ultimately deleted by the petitioner.

The case is contested by both opposite party Nos.1 and 2 by filing two separate written statements. The opposite party No.1's first contention is that he is not the proprietor as well as the overall incharge of the school-cum-hostel and that there are other trustees of St. Andrews Trust along with him. Opposite party No.1's version is that the unfortunate incident occurred in his absence and that at that time he was residing at Calcutta. It has been further stated that during the games hour in the evening on 2.5.1995 when the students of the school were playing all of a sudden Ashish Prasad was injured in his right eye and as soon as the school authority came to know about the incident they took the boy to a private nursing home at Khelary for first aid and thereafter to a doctor, named, Rajiv Dubey, an eye specialist of regional Hospital, C.O.L. Dakra, who treated the boy and advised the school authority to take the boy to Ranchi and on 3.5.1995 a surgical operation was performed by Dr. B.P. Kashyap who was a leading eye surgeon at Ranchi. The opposite party No.1 further states that on receiving a STD communication at 5.30 p.m. on 3.5.1995 he left Calcutta by Howarah-Hatia Express and reached the Eye Hospital of Dr. Kashyap at 8 a.m. Thereafter on the advice of Dr. kashyap the child has immediately taken to Calcutta by sleeper coach. On reaching Calcutta the boy was immediately admitted to the Assembly of God Hospital for further treatment and the expenses for treatment were borne by theopposite party No. 1. The opposite party No. 1 denies the allegation of negligence in the treatment of the boy and states that he had done everything to make a proper treatment of the boy and was not negligent in the matter.

In his written objection, opposite party No. 2 states that the case is no maintainable for want of territorial jurisdiction. He further states that the expenses for the treatment of the boy having not been borne by the petitioner, she is not a 'consumer' in this case. This opposite party denies the allegation that there was negligence on his part in the treatment of the boy. He claims himself to be a qualified surgeon for eye treatment. He states that the boy was suffering from corneal perforating injury with the interior chamber full of blood clot. The blood clot was removed after injecting biolose to protect the remaining part of the cornea. After the removal of the blood it was found that traumatic cataract had ruptured. Lensectomy was done and the cataract of the central area was removed. After removal of the cataract it was found that vitreous hemorrhage had occurred. He then did vitrectomy and after removal of the blood from the vitreous he found white fungal growth and clinically he suspected it to be retinal detachment. The attendant of the patient was apprised of the serious condition of the case and injury. As no further treatment was possible in his hospital he advised the attendant of the patient to move to a bigger hospital like Shankar Netralaya at Madras. The opposite party No. 2 states that there was negligence on the part of the petitioner's family in not availing immediate better eye treatment and as such the eye of the boy was damaged. The opposite party No. 2 denies the allegation of negligence of medical treatment against him. The point for determination is if there is any negligence on the part of the opposite parties as alleged and if the petitioner is entitled to any compensation from them as claimed.

The Commission held that in our estimation, it is not a pure question of medical negligence, is an ignorant negligence which has proved to be very costly. The school authorites could have informed the parents of the boy and sought the advice. They could also take the initiative to have his treatment at a proper hospital or nursing home (they had themselves suggested the name of Shankar Nethralaya of Madras for his treatment). The poverty of the boy's parents was too well-known to the principal of the school and the boy was very cruelly treated to meet the present pathetic situation. The matter should be viewed from a proper perspective. Under different circumstances, the conduct of the opposite parties could have been explained in the ordinary way. But in the circumstances of the present case we must hold very emphatically that utter negligence was shown to the boy, mainly due to his poverty which is the curse of our present day society. Considering the entire circumstances and giving our most anxious consideration to the facts of the case we think that both the opposite parties were negligent in dealing with the boy in a most seriously injured condition. We, therefore, direct them to pay an amount of Rs. 50,000 (Rupees fifty thousand only) as compensation to the complainant within a period of one month from the date of communication of this order. The opposite parties will be jointly and severally liable for this amount. There will be no separate order of costs".

RECENT COPRA JUDGEMENTS

Prasanth S. Dgababja vs. Nizam's Institute of Medical Sciences and Others 1999 CCJ 1099

National Consumer Disputes Redressal Commission, New Delhi

The complainant-patient, a 20 years old student of an Engineering College at the relevant time, was having on and off fever for one year prior to admission in opposite party hospital (NIMS). The last episode of fever immediately preceding admission was for 15 days in September, 1990. The complainant's father was employed in BHEL and in the hospital attached to BHEL, several investigations were conducted and C.T. scan was also done in another private hospital at the instance of BHEL. The complainant visited the opposite party hospital as an out-patient in the evening special clinic on 19-9-1990 (out-patient card No. 35700) when he was seen by Dr. Ashish Boghani, a Chest Physician and Tuberculosis Specialist; he had gone to the morning clinic also with the out-patient card No. 216522 on 27-9-1990, (The morning clinic OPD No. is also recorded in the evening special clinic record). As per the evening O.P. card, the complainant was examined by Dr. Boghani, also on 30-9-1990, 5-10-1990 and 9-10-1990 and be recorded his impression as "Neurofibroma" and advised ultrasound (US) guided biopsy. There was hisotry of wright and appetite loss and the complainant-patient was found to be having a mass in left hemithorax by chest X-ray taken as a routine investigation. There was dull note on percussion in left intraclavicular region on left side with decreased breath percussion in left intraclavicular region on left side with decreased breath sounds in the same area. X-ray PA view showed posterior mediastinal mass lesion with erosion of left hemithorax with erosion of the ribs when two attempts at Fine Needle Aspiration Cytology (FNAC) under ultrasound guidance and trucut biopsy under fluroscopy guidance did not give any conclusive evidence, the complainant was referred on 5-10-1990 for further management to Dr. U. N. Das (opposite party No. 4) who suggested another attempt of FNAC under computed tomography (CT) guidance. Opposite party No. 4 on noticing that the fourth attempt of FNAC done on 9-10-1990 did not show any lesion, advised on 15-10-1990 excision biopsy by thoracotomy and referred the complainant to Dr. P. V. Satyanarayana, Cardio Thoiracic (CT) Surgeon (opposite party No.2). The complainant was asked by opposite party 2 to come to the hospital on 16-10-1990 for allotment of room and was admitted in the hospital on 19-10-1990; a posterolateral thorqacotomy on left side and excision of tumour was done by opposite party No. 2 on 23.10.1990.

As per the copy of the discharge record filed along with the complaint (Annexure II), the patient developed acute onset of paraplegia immediately after surgery and "had flaccid paraplegia with a sensory level at D10. Bladder and bowel paralysis was present. Lower limb reflexes were absent. Ischemic myelopathy was considered which was substantiated by MRI scan of spinal cord. Patient was managed with steroids and aimodepine and was on continuous bladder drainage and later was on intermittent self catheterisation. During the hospital stay he developed spasticity and flexor spasms and diffuse pain in the lower limbs". Thus, the complainant got paralysis of trunk and lower limbs and lost urine and stools sensation and control and sensibility in the buttocks, urinary bladder, rectum, flexor aspects of the thighs, legs and feet. When the patient was discharged on 19-5-1991 after 7 months of hospitalization, he continued to have paralegia with no change in sensory deficit. The discharge record noted that the patient requires continuous physiotherapy and nursing care. Because of paraplegia and sudden emergencies in the complainant's condition of health, arising out of infection of bedsore wounds, urinary tract, recturm and blood, the complainant had besides undergoing the hyperbaric oxygen therapy at the Airforce Academy Hospital, Hyderabad, during February, 1991 to 1991 visited, after discharge from NIMS, other hospitals also whenever the culture reports indicated serious infection and necessitate hospitalization. All in all, the complainant had spent a period of 398 days in different hospitals from 19-10-1990 to 13-31993 including 213 days in the opposite party hospital. The complainant alleged that he has become invalid, totally impaired and disabled consequent to the negligence of opposite parties in the pre-operative, operative and post-operative stages.

The reply version filed by opposite party No.1 on its behalf and also on behalf of opposite party Nos. 2 to 6 in general denied the allegations of the complainant of medical negligence and pleaded that since, (i) opposite party No. 6 (Chief Secretary, Andhra Pradesh Government) is absolutely unconcerned in the case, the complainant against him might be dismissed in limine and (ii) opposite party Nos. 2, 3 and 4 are the doctors employed by the opposite party No.1 and as no personal claims are made against them in the complaint and having impleaded opposite party Nos.1 and 5 as parties Nos. 2, 3 and 4 as parties to the complaint and, therefore, the above complaint is liable to be dismissed in limine as against opposite party Nos. 2, 3 and 4 also. They further denied receipt of the letters written by the father of the complainant to opposite party No.5.

The main points made by opposite parties in the reply version are: (i) provisions of the Consumer Protection Act are not attracted against opposite No. 1, (ii) in the first claimed to have been written by the complainant's father after the surgery had taken place, there was no allegation of any negligence on the part of any opposite party in performance of the operation and it was only in the second letter sent after a lapse of one and half years from the date of the first letter that allegations of negligence against opposite party No.2 were made for the first time. (iii) most of the annexures filed by the complainant for arriving at the quantum of compensation are self-serving documents and the claim is totally exaggerated and ill-founded, (iv) a surgeon or a medical practitioner cannot be considered as insurer against the accidental slip but he is expected to exercise such care as a normal skilful member of the profession is expected. The standard of care and skill to satisfy duty is that of an ordinary competent medical practitioner exercising the ordinary degree of proficiency and skill. A doctor is not liable for misadventure or for an error of judgement. Failure to cure is not the same as being negligent. Once can be found guilty only when he has fallen short of standard medical care. Opposite party Nos. 2 to 4 are very competent doctors with very high reputation in performing their professional functions and there has been no complainant against their skill in their respective specialities. All these doctors are working full time in the hospital, (v) opposite parties have considerable sympathy for the complainant and his father and opposite party Nos. 1 to 4 have made every attempt to safeguard the interests of the complainant to save hi from the ailment he suffered, (vi) while the NIMS is very much willing to get the matters adjudicated, it requests the appointment of necessary Commission to inquire into the matter by visiting the institution itself is might be difficult for it to establish its version correctly at Delhi.

The Commission held that, admittedly, there was acute onset of paraplegia. Here, it may be noted that the three cases of parapegia cited by opposite parties pertain to pulmonary surgery and not to mediastinal one. The plea taken by opposite parties that it was the most uncommon of complications, fails, insofar as the minimum of pre-operative and operative care was not taken by them. There was injury ti spinal cord and it was damaged consequent to the operation and there was reduction/non-supply of blood to the spinal cord. Opposite parties have not been able to explain why removal of a benigin tumour in chest wall resulted in spinal cord injury and paraplegia. There was lack of proper appreciation and assessment of the neurological implications of the pathology and spread of the tumour due to which the surgery was performed without the complete involvement of the neurosurgeon. This was a serious lapse on the part of opposite party No. 2 and amounted to negligence and lack of care and, therefore, deficiency in service in the operation per se. opposite party No. 3 who was then the director of the institute besides being a neurosurgeon himself has also been negligent on (i) not having a discussion meeting of the clinical physician and the surgeons in the relevant lines (including himself), (ii) not planning the surgery on right lines, and (iii) not performing the surgery along with C.T. surgeon as a team. Lack of care of opposite parties the Commission continued, is also evident when they say that they were unaware when exactly paraplegia had set in, that they noticed it after patient's recovery from anaesthesia in the post operative period and that, therefore, the question of averting paraplegia did not arise. When during the surgery, extension of the mass into intervertebral foramen and extrapleurally down to the spinal cord with extra dural extension + besides vertebral erosion was noticed, ste should have been taken to monitor the situation and preserve blood supply to the spinal cord. The operation notes which read, inter alia, "Post OP...Pt. Showing paraplegia. Shifted to T.R.R." suggest that the complainant -patient developed paraplegia in the operation theater itself before being shifted to the Thoracic Recovery Room.

Finally, the Commission held that we are of the view that the facts and circumstances of the case justify, (i) the award to the complainant of an amount of, (a) Rs. 8,00,000 (expected to yield a monthly interest of about Rs. 8,000) towards the prospective charges for physiotherapy, nursing and associated expenses, (b) Rs. 4,00,000 (expected to yield a monthly interest of about Rs 4,000) for supplementing the complainant's future earnings, and (c) Rs. 2,00,000 as compensation for his mental agony, physical suffering and pain and also for physiotherapy, nursing and associated expenses already incurred by him and (ii) award of compensation of Rs. 1,50,000 to the parents for their perpetual mental agony, stress and depression and for the continued support, care and attention they have to provide to the complainant and for the income loss of the mother due to dislocation in her job to look after her son. We, therefore, direct the opposite party No. 1 to pay a total compensation of Rs. 14,00,000 to the complainant and compensation of Rs. 1,50,000 to the complainant's parents jointly, within a period of 3 months from the date of receipt of this order failing which interest at the rate of 15 per cent per annum shall become payable by opposite party No. 1 until the date of payment. We also impose costs of Rs. 25,000 on opposite party No. 1. Complaint is allowed.

RECENT COPRA JUDGEMENTS