NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 182 OF 2000 (From the order dated 6.4.2000 in Original Case No. 26/95 of the State Commission, Madhya Pradesh) Dr. P.S.Hardia Appellant Versus Kedarnath Sethia Respondent BEFORE: HONBLE MR. JUSTICE M.B.SHAH, PRESIDENT MRS. RAJYALAKSHMI RAO, MEMBER. For the Appellant : Mr. M.M.Asudani & Mr. A.P.Dhamija, Advocates. For the Respondent : Mr. Vivek Agarwal, Advocate. DATE: 20th JULY , 2004 O R D E R
M.B.SHAH, J. PRESIDENT
By
judgement and order dated 6.4.2000 in original case No.26/1995, the Madhya
Pradesh State Consumer Disputes Redressal Commission, Bhopal, arrived at a
conclusion that despite required advance glaucoma filtering surgery the
appellant performed RKD Operation (Radial Keradiathermy)
by which complainant lost sight in his right eye. For this purpose, the State Commission
observed as under :-
We regret to say that the opposite
party has tried to give evasive reply for the reasons best known to him. He has nowhere in categorical words denied
that the allegations of the complainant that RKD was not required for glaucoma
or that subsequent filtering operation was also not required. He has also not denied that the complainant
gradually lost eye sight. He has also
not tried to explain as to why filtering surgery was required just after three
days of RKD operation. The opposite
party has also not refuted this allegation of the complainant that the
operations were performed without his consent.
Copies of consent letters obtained for two operations could have been
filed, or if operations were performed without his consent specific reasons and
circumstances should have been explained.
Simply saying to treat him at his own risk under expressive
consent does not absolve the opposite party of the responsibility of
taking consent when there was no urgency for performing RKD operation within
minutes. There is no plea of mishap or
misadventure or difference of opinion or error of judgement. Hence we are constrained to say that the opposite party has been trying to misguide us by giving
self-contradictory and evasive replies, right from the very beginning.
Therefore, the State Commission allowed
the complaint and awarded compensation of Rs. 1 lakh with interest @ 12% from the date of filing of the
complaint.
That order is challenged by filing this
Appeal.
On 17.4.2001, this Commission granted
stay order against the execution of the Award on the condition that appellant
shall pay a sum of Rs.50,000/- to the complainant
(Respondent) within eight weeks thereof.
It is admitted that the aforesaid amount was paid to the
complainant.
Thereafter,
the matter was adjourned repeatedly for hearing and when the matter was heard
on 24.5.2004, learned counsel for the appellant submitted that the appellant
would tender written submissions within a period of one weak. No such written submissions are filed and
hence, respondent has also not tendered such submissions.
At the time of hearing of this appeal,
learned counsel for the appellant submitted that appellant is an expert
Ophthalmologist and specialist in such surgery and there was no error or
mistake committed by him for operating myopia (RKD) before removing glaucoma. Being expert, he arrived at a conclusion that
pain and redness in right eye were because of hypermyopia in excess. Therefore, first operation was required to be
performed for hyprmyopia.
As
against this, it is the say of the Complainant that he was a Lecturer in
Economic at G.B.H. School, Chirmiri, and because of the eye
trouble, he was required to get it checked from various Ophthalmologists. Fro
establishing his case, the Complainant has produced on record the entire
history of medical repairs and treatment. It is his say that he was suffering
from glaucoma in his right eye but was having 100% eye sight with the use of
glasses in both the eyes. In his affidavit before the State Commission, he has
stated that he got his both eyes checked on 13.1.1993 from Dr.Pravinchandra
S. Patel at Raipur. The original prescription
given by Dr.Patel is also produced on record. And, thereafter, he obtained glasses of both
the eyes having +3.75 and +3.00. For
that he has relied upon Ex.E-2. Subsequently, he got his eyes examined at National Thermal Power Corporation Ltd., Jyoti Nagar, Andhara
Pradesh on 3.8.1993 where his younger borther-in-law,
Dr. Pradeep Suhane was employed. The eye specialist had traced
increased tension in both the eyes and found the symptoms of glaucoma
disease and has prescribed the medicine, optipres.
Again he got himself
examined on 7.10.1993 by an eye specialist, Dr.B.S.Jain
at Maharani Laxmi Bai Medical College, Jhansi. Dr.Jain after examining the Complainant,
advised to stop using the medicine optipres for fifteen days so that glaucoma disease could
be correctly checked. That document is also produced on record.
As the Complainant found that
tension was increasing in his eyes, he contacted another eye specialist of Chirmiri on 15.12.1993. Thereafter, on 20.12.1993 he went to Raipur for getting his eyes
checked by Dr. B.P.Sharma. On that day, when Dr. B.P.Sharma was not available, he was examined by Dr. I.S.Shukla, Ex.Professor and Head
of Department of Eye Section, D.K.Hospital, Raipur. He was also
examined by Dr. Prabhat K. Mukherjee,
Professor and Head of Eye Department of Pandit Jawahar
Lal Nehru Memorial Medical College, Raipur, which had mentioned
that Complainant was under treatment for glaucoma and the vision with spects as 6 x 6 and the tension increased. Eye numbers were
again got checked on 30.7.1994 and were found +3.75 in the right eye and +3 in
the left eye, so that he was having 100% eye sight with spectacles.
He has further pointed out
that for getting treatment he had visited Dr.Hardia
Advance Eye Surgery and Research Centre, Indore on 22.9.1994. For
that purpose he has produced on record a booklet provided by the Respondent
which is Ex.E-11. The relevant part of E-11 is as under:
Pain in R.E., F.B. sensation,
watering Redness, Heavyness, more in R.E. using
glasses for year present glasses change 1 month back, using Pilocarpine.
He has also averred
that the Respondent had examined the eyes of the Complainant and the eye sight
of his both the eyes was found 100% with spectacles and that is also mentioned
in treatment booklet. The Respondent advised for operation. Thereafter,
Respondent directed the Petitioner to get the blood sugar and other tests
conducted, which were conducted. After completion of pathological
investigation. The operation was performed on his right eye on 23.9.1994 and,
thereafter, on 26.9.1994, another operation, i.e. Filtering operation was
performed. That is mentioned in the booklet provided by the Respondent. It is his say that the first operation was
RKD and the second operation was for Glaucoma. Necessary documents are produced
on record.
It
is the say of the Complainant that on 7.12.1994 he got his eyes examined by Dr.Y.D.Aggarwal, Ashok Nagar, Distt.
Guna, who
found loss of eye sight in the right eye. Dr. Aggarwal
found the tension of right eye as 6.1, below normal. To get it further checked,
the Complainant went to Jabalpur and was examined by Dr.R.K.Mishra who also found that there was loss of eye
sight of the right eye. These documents are also produced on record. The same
was confirmed by Dr.Prabhat K. Mukherjee
of Raipur. The Complainant,
thereafter, served notice for the deficiency in service by the Respondent. Loss of eye sight was got further confirmed
by examination report of Shankar Netralaya,
Madras. That report is dated 30.4.1995
which is produced on record as Ex.P-34.
It is his contention that RKD operation is performed only in (-) Miopia whereas no symptoms of Miopia
were found during the check up of the Complainant by the Respondent. Despite this, for no justifiable reasons,
except for business, Opposite Party has performed two operations one RKD and,
thereafter, within two days, filtering for glaucoma.
It
is the say of the Complainant that he was posted as Lecturer in Economics at
G.B.H. School, Chirmiri and that he was aged about 53
years and that due to loss of vision in his right eye, he would suffer agony in
the remaining life as well as it would create difficulties in studying and
reading. Therefore, he has claimed a sum of Rs.10 lakhs
as compensation. The aforesaid affidavit along with documentary evidence was
considered by the State Commission. It appears from the observation made by the
State Commission that the Respondent was reluctant to file proper written
version. However, after appreciating the evidence which was produced on record,
examining the booklet supplied by the Respondent, the State Commission held
that the Opposite Party had not denied that the main ailment of the Complainant
was glaucoma. No notes of performance of operation on 23.9.1994 and 26.3.1994
were produced on record. No
chronological history of operation, no chronology of treatment given, no chronological history of nursing done was produced on
record. In the booklet issued by the Harida Centre
after the note of hypermyopia and RKD, there is a
note of glaucoma filtering surgery.
It cannot be disputed that
RKD operation, i.e. to say, operation for removing myopia so that spects may not be required is not must. As such filtering of water, i.e. glaucoma
operation was required to be performed first. May be that appellant may be
expert, but that
would not give privilege in not maintaining or producing relevant record or
preventing from admitting the mistake committed by him. Considering all these
aspects the State Commission rightly arrived at the conclusion that there was deficiency in service
and negligence in not performing the operation for glaucoma first and not
producing the necessary record before the State Commission.
After
the judgment was reserved and before the order could be pronounced, the
Petitioner had sent much more delayed written submissions including the extra
literature to reiterate that RKD operation is a safest method to treat
Hyperopia. Those submissions are also taken into consideration. In this
submissions Petitioner also reiterated that he is an eminent Ophthalmologist
and an expert in the field and has published a number of articles. With regard
to his qualifications and expertise, the Opposite Party has not disputed.
However, from the medical literature which he had sent, we would quote some
portions which indicates that when a person is suffering from Glaucoma, RKD is
the contra indication. The relevant part from the article written on Hyperopia,
Conductive Keratoplasty by Manolette R Roque, M.D. which the Appellant had referred to is as
under:
Contraindications: A few
contraindications exist for CK. Basic criteria that a patient must meet to be
considered a good candidate for CK include the following:
–
At least 21 years
–
No drastic changes in vision or
eyeglass
prescription within the past year.
–
No eye conditions, including severe
dryness,
corneal dystrophy, glaucoma, herpes of the eye,
aggressive keloid formation, and keratoconus.
–
No physical conditions, including
diabetes,
pregnancy
or breastfeeding, and autoimmune or
vascular
diseases.
It appears that the Doctor of repute has ignored these contra
indications and performed the RKD without operating for glaucoma.
Further, RKD treatment, as per the medical literature is to some
extent cosmetic operation so that spects are avoided.
A
report by the American Academy of Ophthalmology Ophthalmic Technology
Assessment Committee, George O.Waring, III, MD,
published in Ophthalmology July 1993, Vol.1000, 1103-1115, on the subject
Radial Keratotomy for Myopia, which is
obtained from the internet, a portion of which
reads as under:
The potential of this
procedure to render good visual acuity without glasses or contact lenses must
be weighed against its known risks. Refractive side effects include
anisometropia (imbalanced vision between the two eyes), increased astigmatism, and symptomatic
presbyopia (loss of near focus in middle life). Other common, usually less
severe side effects include prolonged unstable vision and mild glare. Uncommon,
but potentially binding, complications include ocular infection and traumatic
rupture of the cornea at the keratotomy scars. The goal of radial keratotomy is
to correct the refractive error of myopia. It also may serve to improve
cosmetic appearance if the patient does not require glasses after surgery. It
is elective surgery because other alternatives are available for the management
of myopia, including conventional glasses and contact lenses. In addition,
other refractive keratoplasty procedures are available, including excimer laser photorefractive keratectomy, keratomileusis and epikeratoplasty.
Selection of the best alternative for the management of myopia in an
individual patient should be based on the patient’s personal needs and on the
ophthalmologist’s and patient’s assessment of the risks and benefits of the
available modes of correction.
Further, with regard to the
award of compensation, it cannot be said that it is on higher side. In the
result, the appeal is dismissed. There shall be no order as to costs.
…..J.
(M.B.SHAH)
PRESIDENT
.
(RAJYALAKSHMI
RAO)
MEMBER