Dr. K. Sivaramakrishnaiah, M.S. Opth Vs. Dasari Venkata Jaya Hari Rao and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1109823
CourtAndhra Pradesh State Consumer Disputes Redressal Commission SCDRC Hyderabad
Decided OnFeb-09-2011
Case NumberF.A.No.848 of 2008 Against C.C.No.142 Of 2006 District Forum-Ii Vijayawada
JudgeMR. SYED ABDULLAH, HONOURABLE MEMBER & MR. R. LAKSHMINARSIMHA RAO, HONOURABLE MEMBER
AppellantDr. K. Sivaramakrishnaiah, M.S. Opth
RespondentDasari Venkata Jaya Hari Rao and Another
Excerpt:
oral order (as per sri r.lakshminarasimha rao, honble member) 1. the opposite party no.1 is the appellant. 2. the brief facts as set out in the complaint are that on 31.10.2004 the complainant underwent cataract operation to his left eye in the opposite party no.1 hospital and continued to receive post operative treatment till 15.11.2004 as an outpatient. as the complainant suffered with severe pain and discharging of water from the operated eye, he approached dr.g.v.prasad of machilipatnam on 16.11.2004 who advised him to go to lv prasad eye institute, hyderabad. on 18.11.2004 the complainant immediately approached l.v.prasad institute, hyderabad where the doctors conducted re-operation on the operated eye since there is damage to the cells due to leakage. the complainant had undergone treatment till 8.03.2005 as an outpatient. even after re-operation the complainant got 50% vision. the doctors of lv prasad eye institute opined that the operation conducted in the hospital of the opposite party no.1 is a failure and the cells in the eye of the cornea were lost and that to get full vision of the eye, the complainant has to undergo cornea re-plantation which costs about `50,000/-. the inconvenience was caused due to negligence and deficiency in conducting surgery by the opposite party no.1. the complainant got issued notice on 26.03.2005 to the opposite party no.1 demanding to pay compensation. the complainant sought for directions to the opposite parties to pay `1,00,000/- towards damages, `1,00,000/- towards mental agony and costs. 3. the opposite party no.1 resisted the case contending that he planted pciol without sutures and attended the surgery with due diligence and care. after surgery the complainant visited the opposite party no.1 on 1.11.2004 and after examining him, prescribed medicine. the doctors at lv prasad eye institute attended to the wound leakage. the operation attended by the doctors of lv prasad eye institute is not that of the operation attended by the opposite party no.1. in case of any damage caused due to external force the damage is to be rectified by attending wound suturing. the opposite party no.1 advised the complainant to visit him after one week but the complainant visited him on 3.11.2004 with injury. on examination the opposite partyno.1 observed the injury to the eye and pupil is drawn towards section and it indicates injury to the eye due to external force either accidental or otherwise. the opposite party no.2 examined and advised medicine. the vision of the complainant was normal and stated that the problem would be rectified in due course of time. the injury caused to the eye was due to the failure in not taking proper care by the complainant. the complainant did not choose to turn up later though he was asked to come every alternate day. the opposite party no.1 explained the risk factors and educated the complainant about the precautions to be taken during post operation stage. the complainant is not a layman. the advancing age may decrease vision to some extent after surgery. the complaint has to be decided in civil court. the opposite party no.1 has got 40 years experience in attending eye surgeries and his hospital is equipped with latest equipment. there is no deficiency in service on his part and prayed to dismiss the complaint. 4. the opposite party no.2 filed counter contending that there is no privity of contract between the complainant and the opposite party no.2. the opposite party no.1 is a member in the scheme of the opposite party no.2 and is liable to be answerable to the opposite party no.1 but not to the complainant. if any member of the opposite party scheme found guilty for medical negligence, the member of the opposite party scheme has to intimate the same by serving the order of the forum and then only the opposite party no.2 will come into picture. the complaint is bad for misjoinder of parties. there is no consumer relationship between the opposite party and the complainant and prays for dismissal of the complaint. 5. pws 1 to 3 had been examined and exs.a1 to a8 were marked. on behalf of the opposite party no.1, the opposite party no.1 himself was examined as rw1 and exs.b1 to b3 had been marked. 6. the district forum has allowed the complainant directing the opposite party no.1 to pay rs.50,000/- with costs. the complaint was dismissed against the opposite party no.2. 7. aggrieved by the order of the district forum the opposite party no.1 had filed the appeal contending that the vision decreases with age so also injury decreases the vision and when the injury or wound is cured the normal vision would automatically be restored. 8. the points for consideration are: 1) whether the opposite party no.1 had rendered negligent treatment to the complainant? 2) to what relief? 9. point no.1 the complainant had undergone cataract of his left eye in the hospital of the opposite party no.1 on 31.10.2004 and it is his contention that within 15 days thereof he had suffered with severe pain and discharging water from the operated eye and in lv prasad eye institute on 18.11.2004 the doctors conducted another operation due to the damage to the cells of the operated eye. the contention of the complainant is that he had lost 30% vision due to the negligence of the first opposite party in conducting surgery. the opposite party no.1 has stated that after the surgery, the complainant came to him on 3.11.2004 with an injury to his operated eye whereby the pupil was drawn towards section. 10. the opposite party no.1 has stated that the complainant sustained injury to his operated eye and he has not stated the cause of injury. he deposed that he had not made mention in the case sheet on 11.11.2004 about the healing of injury and necessity of suturing. interestingly, he stated that the patient had not allowed him to examine so as to come to a conclusion about the necessity of suturing. no patient would obstruct his doctor from examining him to diagnose the problem and give proper advice. it is the consistent version of the opposite party no.1 that coronial detachment occurred due to injury and in his counter the opposite party no.1 stated that the complainant approached him on 3.11.2004 i.e., beyond the period of one week of surgery with injury to his left eye and it was stated “the respondent observed on examination that the left eye got injury and the pupil is drawn towards section (operative wound), it indicates injury to the eye due to external force, or otherwise. however, the vision of the complainant was normal even on 3.11.2004 also”. this statement of the opposite party no.1 is against the statement of pw2 gv prasad according to whose opinion the leakage of wound may be due to improper suturing, injury or improper healing of tissue basing on constitution of the patient. dr.v.praveen krishna of lv prasad eye institute stated that he had operated the eye of the complainant on 18.11.2004 and the wound was healed. he had deposed that at the time of his examination, the vision of the complainant was poor and it gradually improved. 10. the opposite party no.1 had failed to substantiate his contention that he advised the complainant at the time of discharge to report on the next day. he has deposed that the complainant came to his hospital on 1.11.2004 against what is stated in his written version that the complainant approached him on 3.11.2004. the statement of the opposite party no.1 indicates that he had not advised the complainant to turn up on the next day of the operation. the opposite party no.1 states that due to negligence of the complainant, damage occurred to the cells of the eye mostly due to external force or for other reasons occurs. all these facts would indicate negligence on the part of the opposite party no.1. however, the amount awarded as compensation by the district forum to the complainant i.e., `50,000/- is on the higher side and we reduce the same to `25,000/-. the opposite party no.1 is a member of the opposite party no.2 scheme and by virtue of the membership the second opposite party had undertaken to indemnify the first opposite party in case of medical negligence. therefore, both the opposite parties are jointly and severally liable to pay the amount of `25,000/- to the complainant. 11. in the result the appeal is allowed. the order of the district forum is modified by reducing the compensation of `50,000/- to `25,000/-. the opposite parties no.1 and 2 are directed to pay `25,000/- together with cots of `2,000/- to the complainant. the costs of the proceedings in the appeal are quantified at `2,000/-. time for compliance four weeks.
Judgment:

Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member)

1. The opposite party no.1 is the appellant.

2. The brief facts as set out in the complaint are that on 31.10.2004 the complainant underwent cataract operation to his left eye in the opposite party no.1 hospital and continued to receive post operative treatment till 15.11.2004 as an outpatient. As the complainant suffered with severe pain and discharging of water from the operated eye, he approached Dr.G.V.Prasad of Machilipatnam on 16.11.2004 who advised him to go to LV Prasad Eye Institute, Hyderabad. On 18.11.2004 the complainant immediately approached L.V.Prasad Institute, Hyderabad where the doctors conducted re-operation on the operated eye since there is damage to the cells due to leakage. The complainant had undergone treatment till 8.03.2005 as an outpatient. Even after re-operation the complainant got 50% vision. The doctors of LV Prasad Eye institute opined that the operation conducted in the hospital of the opposite party no.1 is a failure and the cells in the eye of the cornea were lost and that to get full vision of the eye, the complainant has to undergo cornea re-plantation which costs about `50,000/-. The inconvenience was caused due to negligence and deficiency in conducting surgery by the opposite party no.1. The complainant got issued notice on 26.03.2005 to the opposite party no.1 demanding to pay compensation. The complainant sought for directions to the opposite parties to pay `1,00,000/- towards damages, `1,00,000/- towards mental agony and costs.

3. The opposite party no.1 resisted the case contending that he planted PCIOL without sutures and attended the surgery with due diligence and care. After surgery the complainant visited the opposite party no.1 on 1.11.2004 and after examining him, prescribed medicine. The doctors at LV Prasad eye institute attended to the wound leakage. The operation attended by the doctors of LV Prasad eye institute is not that of the operation attended by the opposite party no.1. In case of any damage caused due to external force the damage is to be rectified by attending wound suturing. The opposite party no.1 advised the complainant to visit him after one week but the complainant visited him on 3.11.2004 with injury. On examination the opposite partyno.1 observed the injury to the eye and pupil is drawn towards section and it indicates injury to the eye due to external force either accidental or otherwise. The opposite party no.2 examined and advised medicine. The vision of the complainant was normal and stated that the problem would be rectified in due course of time. The injury caused to the eye was due to the failure in not taking proper care by the complainant. The complainant did not choose to turn up later though he was asked to come every alternate day. The opposite party no.1 explained the risk factors and educated the complainant about the precautions to be taken during post operation stage. The complainant is not a layman. The advancing age may decrease vision to some extent after surgery. The complaint has to be decided in civil court. The opposite party no.1 has got 40 years experience in attending eye surgeries and his hospital is equipped with latest equipment. There is no deficiency in service on his part and prayed to dismiss the complaint.

4. The opposite party no.2 filed counter contending that there is no privity of contract between the complainant and the opposite party no.2. The opposite party no.1 is a member in the scheme of the opposite party no.2 and is liable to be answerable to the opposite party no.1 but not to the complainant. If any member of the opposite party scheme found guilty for medical negligence, the member of the opposite party scheme has to intimate the same by serving the order of the forum and then only the opposite party no.2 will come into picture. The complaint is bad for misjoinder of parties. There is no consumer relationship between the opposite party and the complainant and prays for dismissal of the complaint.

5. PWs 1 to 3 had been examined and Exs.A1 to A8 were marked. On behalf of the opposite party no.1, the opposite party no.1 himself was examined as RW1 and Exs.B1 to B3 had been marked.

6. The District Forum has allowed the complainant directing the opposite party no.1 to pay Rs.50,000/- with costs. The complaint was dismissed against the opposite party no.2.

7. Aggrieved by the order of the District forum the opposite party no.1 had filed the appeal contending that the vision decreases with age so also injury decreases the vision and when the injury or wound is cured the normal vision would automatically be restored.

8. The points for consideration are:

1) Whether the opposite party no.1 had rendered negligent treatment to the complainant?

2) To what relief?

9. POINT NO.1 The complainant had undergone cataract of his left eye in the hospital of the opposite party no.1 on 31.10.2004 and it is his contention that within 15 days thereof he had suffered with severe pain and discharging water from the operated eye and in LV Prasad Eye Institute on 18.11.2004 the doctors conducted another operation due to the damage to the cells of the operated eye. The contention of the complainant is that he had lost 30% vision due to the negligence of the first opposite party in conducting surgery. The opposite party no.1 has stated that after the surgery, the complainant came to him on 3.11.2004 with an injury to his operated eye whereby the pupil was drawn towards section.

10. The opposite party no.1 has stated that the complainant sustained injury to his operated eye and he has not stated the cause of injury. He deposed that he had not made mention in the case sheet on 11.11.2004 about the healing of injury and necessity of suturing. Interestingly, he stated that the patient had not allowed him to examine so as to come to a conclusion about the necessity of suturing. No patient would obstruct his doctor from examining him to diagnose the problem and give proper advice. It is the consistent version of the opposite party no.1 that coronial detachment occurred due to injury and in his counter the opposite party no.1 stated that the complainant approached him on 3.11.2004 i.e., beyond the period of one week of surgery with injury to his left eye and it was stated “the respondent observed on examination that the left eye got injury and the pupil is drawn towards section (operative wound), it indicates injury to the eye due to external force, or otherwise. However, the vision of the complainant was normal even on 3.11.2004 also”. This statement of the opposite party no.1 is against the statement of PW2 GV Prasad according to whose opinion the leakage of wound may be due to improper suturing, injury or improper healing of tissue basing on constitution of the patient. Dr.V.Praveen Krishna of LV Prasad Eye Institute stated that he had operated the eye of the complainant on 18.11.2004 and the wound was healed. He had deposed that at the time of his examination, the vision of the complainant was poor and it gradually improved.

10. The opposite party no.1 had failed to substantiate his contention that he advised the complainant at the time of discharge to report on the next day. He has deposed that the complainant came to his hospital on 1.11.2004 against what is stated in his written version that the complainant approached him on 3.11.2004. The statement of the opposite party no.1 indicates that he had not advised the complainant to turn up on the next day of the operation. The opposite party no.1 states that due to negligence of the complainant, damage occurred to the cells of the eye mostly due to external force or for other reasons occurs. All these facts would indicate negligence on the part of the opposite party no.1. However, the amount awarded as compensation by the District Forum to the complainant i.e., `50,000/- is on the higher side and we reduce the same to `25,000/-. The opposite party no.1 is a member of the opposite party no.2 scheme and by virtue of the membership the second opposite party had undertaken to indemnify the first opposite party in case of medical negligence. Therefore, both the opposite parties are jointly and severally liable to pay the amount of `25,000/- to the complainant.

11. In the result the appeal is allowed. The order of the District Forum is modified by reducing the compensation of `50,000/- to `25,000/-. The opposite parties no.1 and 2 are directed to pay `25,000/- together with cots of `2,000/- to the complainant. The costs of the proceedings in the appeal are quantified at `2,000/-. Time for compliance four weeks.