Asha Rani Vs. Dr. Rohit Grover and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1114031
CourtUnion Territory Consumer Disputes Redressal Commission UT Chandigarh
Decided OnOct-17-1996
Case NumberComplaint Case No. 389 of 1992
JudgeJ.B. GARG, PRESIDENT, THE HONOURABLE MR. SADA NAND, MEMBER & THE HONOURABLE MRS. P. OJHA, MEMBER
AppellantAsha Rani
RespondentDr. Rohit Grover and Others
Excerpt:
consumer protection act, 1986 - sections 2(1)(g) and 14(1)(d) - comparative citations: 1997 (1) clt 588, 1997 (1) cpr 55, 1996 (3) cpj 259j.b. garg, president: 1. asha rani, aged 58, a housewife, went to grover eye and ent hospital, sector 35-a, chandigarh, on 10.3.92 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 11.3.92 and 16.3.92. the examination revealed that she required surgery of her left eye on account of 'glaucoma'. she was admitted in the evening of 24.3.92 as indoor patient and on the next day, her left eye was operated upon for glaucoma. however, after discharge from the hospital on 25.3.92 and thereafter she contacted the respondent on 27.3.92, 30.3.92, 31.3.92 1.4.92 and 4.4.92, but her eye-sight of the left eye did not revive. it has been alleged that the respondent 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 followup, while she was still under treatment, she was operated upon thrice on the left eye between 9.4.92 and 12.5.92, but it was of no avail. the complainant has claimed damages to the tune of rs. 9.99 lacs together with interest @ 18% p.a. for the deficient service at the hands of the respondent medical practitioner. 2. the respondent, 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 25.3.92. the clinical examination indicated satisfactory progress when the bandage was opened and a fresh bandage was applied at 8.00 p.m. on 25.3.92. 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% and drosyn 10% 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 4.4.92, 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 respondent 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 respondent 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 preformed 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 no electric failure and the alternative arrangements always existed. 3. on behalf of the complainant it has been urged that other eminent doctors of chandigarh as well as of delhi turned their face in dismay telling her that surgery was performed by the respondent in a negligent manner resulting in the permanent incurable disability in the eye. the complainant has, however, not named any specialist of chandigarh or delhi, who examined her and came to such a conclusion. there appears to be no evidence that the respondent was absent from his clinic or premises during the period the complainant was under treatment. 4. the learned counsel for the respondent stressed that the complainant was examined properly. she was kept under observation since march 10, 1992. she was subjected to preliminary tests and medication and ultimately admitted as indoor patient on 24.3.92 and the operation was performed on 25.3.92. it was considered to be a successful operation, but unfortunately, the water level did not grow up because it was a case of malignant glaucoma. on behalf of the respondent, shri j.s. narag, the learned counsel, has drawn our attention to an 'official journal' published in july-august, 1992 on glaucoma wherein it has been observed that 'malignant glaucoma' is a rare condition and that may occur after various kinds of glaucoma surgery including iridectomy, cyclodialysis and various filtering procedures. clinically it is characterized by a flat or very shallow anterior chamber and elevated interaocular pressure. this may occur shortly after surgery or months or years later. this might create an obstruction to forward flow of aqueous humor. this proposition has not been controverted. 5. on behalf of the complainant, it has been pointed out that the respondent is running the clinic as an eye surgeon in a small private residential house. it has further been pointed out that the respondent had been too busy and scarcely had the time to attend to large number of patients and it was on account of his negligence that the complainant lost her left eye. may be that the eye hospital is being maintained in a comparatively smaller building still it is not a case that the respondent was absent from the remises or did not pay the required attention to the complainant-patient. there is no evidence to show that there was deficiency or any negligence much less a specific negligence at the time of operation or thereafter. the respondent, when cross-examined told that local anesthesia in the form of drop was applied. the follow up checks were held on 27th and 29th march, 1992 and thereafter almost everyday and during these subsequent examinations, the chamber of the eye was persistently shallow and the patient had malignant glaucoma in the left eye. 6. 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. 7. 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 respondent. the fact that in reality, it was found to be a case of malignant glaucoma, could not be fastened on the respondent medical practitioner. the fact that the respondent medical practitioner refunded the expenses incurred by the complainant by means of a cheque, is a circumstance which itself does not go against him. 8. accordingly we hold that the complainant failed to discharge the heavy onus of proving negligence or deficiency on the part of the respondent. the fact that in reality, it was found to be a case of malignant glaucoma, could not be fastened on the respondent medical practitioner. the complaint fails and it is hereby dismissed leaving the parties to bear their own costs. announced. the order be communicated to the parties free of charges.
Judgment:

J.B. Garg, President:

1. Asha Rani, aged 58, a housewife, went to Grover Eye and ENT Hospital, Sector 35-A, Chandigarh, on 10.3.92 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 11.3.92 and 16.3.92. The examination revealed that she required surgery of her left eye on account of 'Glaucoma'. She was admitted in the evening of 24.3.92 as indoor patient and on the next day, her left eye was operated upon for Glaucoma. However, after discharge from the hospital on 25.3.92 and thereafter she contacted the respondent on 27.3.92, 30.3.92, 31.3.92 1.4.92 and 4.4.92, but her eye-sight of the left eye did not revive. It has been alleged that the respondent 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 followup, while she was still under treatment, she was operated upon thrice on the left eye between 9.4.92 and 12.5.92, but it was of no avail. The complainant has claimed damages to the tune of Rs. 9.99 lacs together with interest @ 18% p.a. for the deficient service at the hands of the respondent medical practitioner.

2. The respondent, 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 25.3.92. The clinical examination indicated satisfactory progress when the bandage was opened and a fresh bandage was applied at 8.00 p.m. on 25.3.92. 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% and Drosyn 10% 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 4.4.92, 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 respondent 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 respondent 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 preformed 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 no electric failure and the alternative arrangements always existed.

3. On behalf of the complainant it has been urged that other eminent doctors of Chandigarh as well as of Delhi turned their face in dismay telling her that surgery was performed by the respondent in a negligent manner resulting in the permanent incurable disability in the eye. The complainant has, however, not named any specialist of Chandigarh or Delhi, who examined her and came to such a conclusion. There appears to be no evidence that the respondent was absent from his clinic or premises during the period the complainant was under treatment.

4. The learned Counsel for the respondent stressed that the complainant was examined properly. She was kept under observation since March 10, 1992. She was subjected to preliminary tests and medication and ultimately admitted as indoor patient on 24.3.92 and the operation was performed on 25.3.92. It was considered to be a successful operation, but unfortunately, the water level did not grow up because it was a case of malignant glaucoma. On behalf of the respondent, Shri J.S. Narag, the learned Counsel, has drawn our attention to an 'official journal' published in July-August, 1992 on Glaucoma wherein it has been observed that 'malignant glaucoma' is a rare condition and that may occur after various kinds of glaucoma surgery including iridectomy, cyclodialysis and various filtering procedures. Clinically it is characterized by a flat or very shallow anterior chamber and elevated interaocular pressure. This may occur shortly after surgery or months or years later. This might create an obstruction to forward flow of aqueous humor. This proposition has not been controverted.

5. On behalf of the complainant, it has been pointed out that the respondent is running the clinic as an eye surgeon in a small private residential house. It has further been pointed out that the respondent had been too busy and scarcely had the time to attend to large number of patients and it was on account of his negligence that the complainant lost her left eye. May be that the eye hospital is being maintained in a comparatively smaller building still it is not a case that the respondent was absent from the remises or did not pay the required attention to the complainant-patient. There is no evidence to show that there was deficiency or any negligence much less a specific negligence at the time of operation or thereafter. The respondent, when cross-examined told that local anesthesia in the form of drop was applied. The follow up checks were held on 27th and 29th March, 1992 and thereafter almost everyday and during these subsequent examinations, the chamber of the eye was persistently shallow and the patient had malignant glaucoma in the left eye.

6. 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.

7. 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 respondent. The fact that in reality, it was found to be a case of malignant glaucoma, could not be fastened on the respondent medical practitioner. The fact that the respondent medical practitioner refunded the expenses incurred by the complainant by means of a cheque, is a circumstance which itself does not go against him.

8. Accordingly we hold that the complainant failed to discharge the heavy onus of proving negligence or deficiency on the part of the respondent. The fact that in reality, it was found to be a case of malignant glaucoma, could not be fastened on the respondent medical practitioner. The complaint fails and it is hereby dismissed leaving the parties to bear their own costs.

Announced. The order be communicated to the parties free of charges.