IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                             Date of Decision: 27.04.2017

Complaint Case No. 283/2001

In the matter of:

Dr. (Mrs.) Prakash Sharma

B-38A, Gangotri Enclave

Alaknanda, New Delhi-110019                       .........Complainant

 

Versus

 

  1. Dr. SharadLakhotia

E-544, Greater Kailash-II

New Delhi-110048

 

  1. Talwar Medical Center

M-139, Greater Kailash-II

New Delhi-110048                             ..........Opposite Parties

                                                                  

CORAM

N P KAUSHIK                         -                  Member (Judicial)

 

1.         Whether reporters of local newspaper be allowed to see the judgment?                   Yes

2.         To be referred to the reporter or not?                                                                  Yes

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

JUDGMENT

  1.     Complainant Dr. (Mrs.) Prakash Sharma herself is a doctor who had herMasters of Surgery (obs. & gynecology) in 1964. She was a senior specialist in the Army Medical Corps till 1978. Thereafter she took up her self-employment in her specialty. Dr. SharadLakhotia R/o E-544, Greater Kailash Part-II New Delhi is an eye specialist (hereinafter referred to as OP No. 1). Talwar Medical Centre M-139, Greater Kailash Part-II New Delhi is a hospital whose infrastructure including operation-theatre was used by OP No. 1 for the treatment of the complainant. Talwar Medical Centre hereinafter shall be referred to as OP No. 2.
  2.     Complainant consulted OP No. 1 at E-544 Greater Kailash Part II New Delhi on 18.11.1998 after she faced vision problem in her left eye. OP No. 1 after examining the eyes of the complainant advised her to undergo surgery for removal of cataract of the left eye. He also advised implantation of Intra-Ocular-Lens (IOL) in the left eye. OP No. 1 assured the complainant and her husband that the IOL implantation was 100% safe and a latest technique. Her vision would be normal after the procedure. OP No. 1 informed the complainant that the surgical procedure and IOL implantation would be done by him at OP No. 2 hospital. Date 23.11.1998 was fixed for the surgery. OP No. 1 asked the complainant to confirm her booking by paying him Rs. 1000/- in advance. Complainant accompanied by her husband reached OP No. 1’s clinic. Some medicines were put in her eyes. She was directed to reach OP No. 2 hospital for admission and operative procedure. OP No. 1 performed the surgery including the IOL implantation. For this he had demanded an amount of Rs. 12,000/-. Said amount was paid to him immediately after the surgery.
  3.     After surgery, OP No. 1 informed the complainant and her husband that the surgery was uneventful and the IOL had been implanted successfully. On the following day i.e. on 24.11.1998 at about 08:30 am., OP No. 1 removed the bandage from the complainant’s left eye. He stated that the condition of the eye was perfectly normal. Complainant however immediately told OP No. 1 that she had a blurred vision and could not see with the left eye. After putting her to test on different machines/equipments, OP No. 1 told the complainant that the lens needed slight ‘refocusing/re-centering’. Complainant was taken into operationtheatre at about 15:30 hrs where she remained uptil 1700 hrs. After doing his job, OP No. 1 told the complainant and her family members that everything including refocusing/re-centering of the IOL was perfectly in order. She could go home after sometime. She was asked to come back after 2-3 days. Complainant paid the bill of Rs. 3450/- presented to her by OP No. 2 hospital. A discharge summary was prepared mentioning, “admitted for surgery for cataract (L) eye IOL implant done”.
  4.     Complainant further submitted that in the night intervening 24/25.11.1998, she felt severe pain in her left eye. She visited OP No. 1 on 25.11.1998 where she was prescribed some more medicines and asked to visit on 26.11.1998. Complainant informed OP No. 1 on 26.11.1998 that she still was not able to see. OP No. 1 assured her that her vision would be back in a week’s time. Medicines already prescribed were asked to be continued for another week. Medical explanation given by OP No. 1 and the non-issuance of the receipt of money made her feel uneasy. For removal of her doubts, complainant took a second opinion from Eye Department of Lion Hospital and Research Center New Friends Colony New Delhi on 04.11.1998. To her horror and shock, she was informed that there was no IOL implant in her left eye. Condition was described as “Aphakia with tear in PC (Posterior Capsule) mild iritisetc”. The revelation shattered and demoralized the complainant as well as her family members. Her husband tried to reach OP No. 1 on telephone who refused to entertain any query. She wanted a confirmation of the finding given by Lion Hospital and Research Centre, New Friends Colony, New Delhi. The same were concurred by the heads of the Eye Departments of the Safdarjung Hospital New Delhi andDr. Ram ManoharLohia Hospital New Delhi.
  5.     Complainant alleged that OP No. 1 had not only duped and cheated her but due to his gross negligence, permanent injury and damage to her left eye was caused. Posterior capsule of left eye had been damaged beyond repairs. The complainant was deprived of having primary implant of IOL in her left eye. For rest of her life she was deprived of her profession as an obstetrician and gynaecologist. It reduced the capacity of earning her livelihood for the rest of her professional life.
  6.     Complainant alleged that OP No. 1 had not recorded relevant medical history, diagnosis and the advice given to her. Record of her treatment as given to her (exhibited as exhibit C1 while dictating these orders) did not show as to what OP No. 1 had done on 23.11.1998 and 24.11.1998 in the operation theatre. Some information was given in the discharge summary only. Discharge summary isexhibited as exhibit C2 while dictating these orders.
  7.     Complainant alleged that while undertaking surgery procedure, OP No. 1 did not obtain “informed consent from her”. Even in the post operation phase, OP No. 1 did not inform her or her family members the true outcome of the surgery. She made a request to OP No. 2 hospital to provide her a copy of the case sheet and operation notes of the surgery. OP no. 2 refused to handover the same. Complainant submitted that on 18.11.1998,cataract was either not there at all or it was just the beginning of cataract. There was no urgency for undertaking the surgery or IOL implant immediately. Due to unethical act of OP No. 1, the complainant was made to believe a medical condition which in all probability did not exist.
  8.     On the basis of the aforesaid facts, complainant has claimed an amount of Rs. 12 lakhs towards damages stating that the act of OP No. 1,affected her capacity to earn her livelihood. Further she had to meet future expenses on further treatment for secondary implant. Permanent damage had been caused to the posterior capsule of her left eye. She had become a social recluse. She would require a longterm psychotherapy to come out of the said mental state. She has thus claimed a further amount of Rs. 7 lakhs for harassment and trauma suffered by her due to negligence and deficiency in service on the part of the OPs.  Complainant has also prayed for award of interest on the amount claimed. Complainant also referred to the complaint lodged by her with the SHO Police Station ChitranjanPark New Delhi dated 09.12.1998 and the copy of the letter dated 14.12.1998 received by her from Delhi Medical Council..
  9.     OP No. 1 Dr. SharadLakhotia filed his reply to the complaint. He denied having fixed the date 23.11.1998 as the date of surgery. He stated that the complainant who was known to him for the last five years, approached him in his clinic. On examination of her left eye, he found that she was suffering from nuclear cataract in her left eye. She was advised surgery for the same. He howeverdid not direct her to report at OP No. 2 hospital for surgery on 23.11.1998. He denied having demanded charges for treatment. Costs of the material and medicines required for the operation were however to be borne by the complainant.
  10. OP No. 1 stated that on 24.11.1998 at about 08:30 am, the complainant came to his clinic for routine post operation bandage removal. He removed the bandage. She had no complaint whatsoever. At about 03:00 pm on the same day i.e. on 24.11.1998, she again came to his clinic and informed him that she had a fall at her home and thereafter she started feeling that her vision had blurred. OP No. 1 stated that after examination, he found that on account of fall, IOL had dis-centered. She was informed that either the IOL would be re-centered or removed depending upon the situation. Complainant was advised to get herself admitted in OP No. 2 hospital immediately. Dr. Walter a vitreo-retina specialist was also called for consultation and assistance. They explained to the complainant that in case the IOL is not centered, it would require removal. After removal of IOL, a secondary IOL would be implanted after two months. Husband of the complainant signed the consent form, complainant being a patient of arithritis. In the evening of 24.11.1998, OP No. 1 tried to re-center the IOL. OP No. 1 further stated that since IOL was not fixing well, he had no option but to remove the same. Accordingly IOL was removed. At that time, Dr. Mudgalthe brother-in law of the complainant and Dr. PrabhatRastogi a Senior General Surgeon were operating at OP No. 2 hospital. IOL was shown and handed over to the husband of the complainant in the presence of the aforesaid two doctors. The complainant was asked through her husband to come on 25th morning for post-operative follow-up at the clinic of the OP No. 1.
  11. At another place i.e. in his written arguments, OP No. 1 stated that the complainant had come to his clinic on 24.11.1998 at 02:30 pm. when she informed him that she had a fall after which she had a blurred vision. OP No. 1 further stated that the complainant visited his clinic on 25.11.1998 and 26.11.1998 for post-operative follow up but did not make any complaint regarding severe pain in her left eye. On examination of her eyes, the vision of the left eye was found to be 6/6 with glasses. OP No. 1 denied if the left eye of the complainant had been damaged due to negligence on his part. He also denied if posterior capsule of the left eye had been damaged during treatment under him. He submitted that the rupture in the posterior capsule was a minorproblem and varied from 2% to 20% in a cataract cases without any significant problem.  OP No. 1 stated that he had taken informed consent from the complainant for both the surgeries conducted on 23.11.1998 and 24.11.1998.
  12. OP No. 2 hospital filed its written version and stated that the complainant had concealed the discharge slip relating to her readmission on the same date i.e. on 24.11.1998 where it was clearly mentioned that intraocular lens was removed with the consent of the patient and lens handed over to the husband of the complainant.
  13. OP No. 2 hospital however submitted that it had no relation with the surgery in question as OP No. 1 had simply used its operation theatre for the purpose of eye surgery. OP No. 2 never assisted or conducted thesurgery of the complainant. OP No. 2 hospital relied upon the alleged second discharge summary and the experts’ opinion given by Dr. J L Goel and Dr. RituArora for and on behalf of Delhi Medical Council and Directorate of Health Services.
  14. Complainant filed rejoinder to the replies submitted by OP No. 1 and OP No. 2 reiterating the averments made in the complaint and denying the defence raised by the OPs. Complainant submitted that the alleged second discharge summary also bore the same admission no. i.e. no. 3430/11/98. Had there been readmission there would have been a fresh admission number supported by an appropriate document. Complainant contended that the alleged second discharge summary is a fabricated document to cover up negligence and deficiency in service on the part of OP No 1. In relation to the enquiry report conducted by the Directorate of Health Services Delhi, complainant stated that it was a ‘sham enquiry’ as it was conducted ex-parte and also the Medical Board did not invite any medical records/documents from the complainant. Enquiry officer did not take into consideration the documents submitted by the complainant alongwith the complaint to the Directorate of Health Services. The whole enquiry was based on a letter written by OP No. 1 to Dr. Ashok Kumar, Medical Superintendent Nursing Homes Directorate of Health Services Delhi. No enquiry had so far been conducted by Delhi Medical Council as stated by the OPs in their replies. Complainant submitted that prior to the surgery,she was not suffering from arithritis. She was fully alert mentally as well as physically. She denied if her husband ever signed consent form for removal of IOL. She also denied if her husband had been handed over any IOL. OPD card covering the entire period of treatment also does not record any removal of IOL. Discharge summary allegedly issued by OP No. 2 to the complainant does not record any precautions required to be taken by the patient.
  15. Complainant stated in her rejoinder that prior to the surgery in question, she was actively engaged in the profession as obstetrician and gynaecologist. Her life had totally changed for the worst. Due to lack of full vision she could not risk the life of any patient in her hands. Perforce she had to forego her profession. Complainant stated that she suffered a traumatic experience after remaining in medical profession for 40 years. Complainant thus alleged that the second discharge summary too was a fabricated document.
  16. Parties differ even on the factual matrix. Complainant’s case is that she was operated upon on 23.11.1998. In the morning of 24.11.1998 at 08:30 hrs OP No. 1 removed the bandage from her left eye and told her that the condition of the eye was perfectly alright. After putting the patient on various equipments, he informed that the lens needed slight re-focusing/re-centering. Complainant was taken into operation theatre at about 15:30 hrs on 24.11.1998. She remained in the operation theater uptil 17:00 hrs. Even completing re-centering/re-focusing,the OP No. 1 could not express his satisfaction of the job done. He asked the complainant to come back after 2-3 days. Now a discharge summary was prepared and the patient was discharged.
  17. On the contrary, case of OP No. 1 is that the complainant came to him in his clinic on 24.11.1998 at about 08:30 am for routine post-operation bandage removal. The same was done. However at about 03:00 pm on the same day the complainant allegedly cameto the clinic of OP No. 1 and informed him that she had a fall at her home and thereafter she started feeling a blurred vision. OP No. 1 categorically stated that on examination of the complainant, he found that on account of the fall, IOL had dis-centered. He advised her to get her admitted to OP No. 2 hospital where OP No. 1 found that IOL was not fixed well. He had no option but to remove the IOL which he did. In other words, complainant relied upon only one discharge summary whereas OP No. 1 and OP No. 2 both relied upon two discharge summaries. OP No. 1 and OP No. 2 while relying upon the discharge summary exhibit C2 also relied upon the discharge summary again dated 24.11.1998 with the timings of 05:30 pm. The said discharge summary is exhibited as exhibit C3. The first discharge summary exhibit C2 does not show the timings of discharge though the date shown is 24.11.1998. In his written version as well as written arguments OP No. 1 stated that the complainant came to his clinic at 08:30 am on 24.11.1998. It is not the case of the OP No. 1 that the complainant had come to his clinic after leaving OP No. 2 hospital against medical advice (LAMA). Now a question arises when the complainant reaches OP No. 1’s clinic at 08:30 am on 24.11.1998, at what time she was discharged from OP No. 2 hospital on 24.11.1998? At the same time, OP No. 1 contends that on 24.11.1998 itself, she visited the clinic of OP No. 1 at 03:00 pm when she informed him of having been fallen at her home. OP No. 2 hospital has placed on record admission and discharge record of OP No. 2 hospital (exhibited as exhibit C4 while dictating these orders). Besides this, OP No. 2 filed progress notes starting from 23.11.1998 and ending till 24.11.1998 (05:00 pm) (running into two pages). The said two pages are exhibited as exhibit C5 (colly)(while dictating these orders). OP No. 2 hospital also filed vital signs chart of the complainant which is exhibited as exhibit C6 (while dictating these orders). Temperature chart is exhibited as exhibit C7 (while dictating these orders). Exhibit C8 is a medicine sheet which is exhibited as exhibit C8 (while dictating these orders).
  18. Perusal of the vital signs chart (exhibit C6) shows that the Temperature pulseand BP of the patient had been recorded starting from 01:00 pm on 23.11.1998 uptil 05:00 pm on 24.11.1998. Likewise a separate temperature chart exhibit C7 shows the recording of pulse and blood pressure uptil 05:00 pm on 24.11.1998. Medicine sheet exhibit C8 shows administering the medicines to the patient uptil 05:00 pm on 24.11.1998. It clearly goes to show that the patient continuously remained in the hospital from 23.11.1998 uptil 24.11.1998 (05:00 pm). Obviously she was discharged only once. Had there been two discharges, the vital sings charts, temperature chart and medicines chart would have not shown a continuity. The irresistible conclusion is that the theory of two discharge summaries as propounded by the OPs is false and fabricated.
  19. Complainant relied upon the OPD card exhibited as exhibit C1 running into two pages with its second page bearing the writing on the back of its first page. The same is not denied by the OPs. It show notes written by the doctors dated 18.11.1998, 23.11.1998, 25.11.1998 and 26.11.1998. Why OP No. 1 has not made entries relating to the dates of surgery and a follow up i.e. the proceedingsdated 23/24.11.1998.
  20. Progress notes exhibit C5 filed by the OP No. 2 hospital and dated 24.11.1998 read as under:

“2/11/98 C same pulse 70 (mm)

BP 140/80

30 pm Pt. brought in for removal of IOL Pt. for surgery today. Comfortable o/e(sic) vital stable

5 pm. IOL was decentered and removed with the consent of patient and her husband. 3 stitches are placed at temporal incision. Mediawas slightly hazy(sic). A rent in posterior capsule was observed. A secondary IOL will be put in posterior chamber after sometime and has been explained to the patient. Dr. Walter invitro retinal surgeon assisted and decision made patient’s relative i.e. husband has been handed over the removed lens in front of Dr. Mudgil his brother. Patient is advised to go home and report tomorrow and thereafter every week. Sd/- 24/12/98

  1. Perusal of the abovesaid notes shows that the OP No. 1 recorded, “patient brought in for removal of IOL”. On the other hand, OP No. 1 in his pleadings stated that he had informed the patient of taking a decision of re-centering/re-focusing the lens or its removal only after assessing the situation in the operation theatre. What material compelled OP No. 1 to go directly for removal of IOL is not recorded by him. He ought have recorded his observations, if any, which warranted removal of IOL.
  2. OP No. 1 vehemently contented that the patient on his second visit to his clinic on 24.11.1998 informed him of having fallen at her home. There is not a single document on record showing such a history narrated by the patient.
  3. OP No. 1 pleaded that it was due to the fall of the complainant at her home which warranted re-focusing/re-centering of lens or removal thereof. OP No. 1 has nowhere recorded having observed ‘posterior capsule rupture’ or ‘iritis’. These were most important events which nowhere appeared in the records placed before this Commission either by the OP No. 1 or OP No. 2 hospital. Complainant has filed whatever records she was given. OP No. 2 hospital filed progress notes vital signs chart, temperature chart, medicines sheet etc. What failed OP No. 2 hospital in filing the surgery notes of the patient? There is no explanation. It simply goes to show that OP No. 1 and OP No. 2 hospital have something material to conceal from the complainant and this Commission. An adverse inference, therefore, has to be drawn against OP No. 1 and OP No. 2 hospital.
  4. Coming to the experts’ opinion, it was the complainant who made a complaint to the Directorate Health Services Govt. of NCT of Delhi. In pursuance to the said complaint, Directorate of Guru Nanak Eye Centre Govt. of NCT of Delhi informed the complainantofhaving constituted a two members enquiry committee. The report given by the enquiry committee is reproduced below:

          The patient Dr. (Mrs.) Prakash Sharma, 62 years old and w/o Sh. V K Sharma, R/o B-38A, Gangotri Enclave, Alaknanda, New Delhi-110019 was admitted at Talwar Medical Centre at 11:00 am on 23.11.98 under Dr. S. Lakhotia. The patient as per records did not have any systemic problem. Her B.P. record was within normal range 150/80 and 140/80. Blood sugar reports were also normal, 89mgm. The patient was admitted for cataract surgery in the left eye. The consent form explains the complications of cataract with IOL surgery. After taking consent from the husband on the consent form the patient was operated for cataract with IOL implant on the same day. Details of operation notes were not available.

          Postoperative cover with the antibiotics, anti-inflammatory drugs and steroid local drops was adequate. The patient was discharged next day after keeping her under observation overnight. At discharge the result of treatment was reported as relieved. At 12.00 noon the patient was discharged and after 3 hours on the same day, the patient was re-admitted for removal of IOL. The IOL was reported decentered. The patient was informed and after taking written consent for removal/recentration of IOL, the patient was taken up for re-surgery. At the table posterior capsular rent was observed and intraocular lens was removed. No secondary IOL was put. The patient was advised to undergo secondary IOL implantation at a later date. The intraocular lens as reported by Dr. Lakhotia in his letter to Dr. Ashok Kumar, Medical Suptd., Nursing Homes was storz foldable lens. This was handed over to Mr. V. K. Sharma (Husband of the patient).

          The patient has all along been explained about the status of the eye by the surgeon. Posterior capsule rupture is a well-known complication in IOL surgery. We do not think that any negligence, professional misconduct and cheating has been done in this case.

 

(DR. J L GOYAL)

  1.  

 

(DR. RITU ARORA)

ASSOCIATE PROF.”

 

  1. Perusalof the abovesaid report shows that the details of operation notes were not made available to the enquiry committee either by the OP No. 1 or OP No. 2 hospital. Enquiry committee observed that at the table,‘posterior capsule rent’ was observed. Where are the documents which led the committee to give the said findings.It clearly shows that the OP filed such a document before the enquiry committee but concealed the same from this court. In the absence of surgery notes, enquiry committee could not have arrived at a conclusion that there was no negligence on the part of the treating doctors.As discussed above, the plea of handing over of the lens to the husband of the patient is also false. Second discharge summary exhibit C3 as well as the progress notes dated 24.11.1998 (exhibit C5) are false and fabricated. The enquiry committee gave its report on the basis of a letter written by OPNo. 1 to Dr. Ashok Kumar, Medical Superintendent Nursing Homes. Complainant or her attendants were not invited to participate in the enquiry proceedings for assisting the enquiry committee. It was in these circumstances that the complainant had filed her objections to the enquiry report by writing a letter dated 13.04.1999 to the members of the committee. She had also protested against the findings of the enquiry report by stating that the enquiry report was a biased one and factually incorrect (complainant’s letter dated 09.04.1999) written to Directorate of Health Services(exhibited as exhibit C6while dictating these orders). The enquiry report observed that the patient was first discharged on 24.11.1998 at 12:00 noon whereas the records maintained by the hospital and referred to above (exhibits C6, C7 and C8) showed her admission uptil 05:00 pm. It gives a doubt on the genuineness of the first discharge summary too.
  2.         OP No. 1 has relied upon the consent letters dated 23.11.1998 and 24.11.1998.Complainant has denied having given any consent on 24.11.1998. On a printed proforma the following writing is seen:“The lens is decentering and may have to take out or may be left like this depending on situation and has been told to him.” It allegedly bears the signature of the husband of the complainant. Complainant has alleged that the said signatures do not belong to her husband and have been forged. She has placed on record the report of anhandwriting expert to the effect that the said signatures are forged ones. OPs have failed to file objections to the report of the handwriting expert. The printed proforma of the abovesaid writing has blank spaces which have not been filled up as in the case of consent form dated 23.11.1998. It leads to a safe inference that the consent form dated 24.11.1998 was a fabricated and false document.
  3. OP No. 1 as discussed above is guilty of fabricating the discharge slip exhibit C3. He has also concealed the surgery notes. No document shows recording of the history of the complainant on her alleged second visit after having allegedly fallen at her house. As per findings above, the complainant was admitted in OP No. 2 hospital only once and obviously discharged once. Version of the OPs to the effect that the complainant had a fall at her house and came to them with a complaint of severe pain is a cooked up story. OPs are not only guilty of ‘deficiency in service’ but also guilty of fabricating records to wriggle out of the clutches of law.
  4. Complainant by profession is an obstetrician and gynaecologist. She has been deprived of conducting surgeries on her patients. She became a social recluse after having lost eye sight in the left eye. The claim of compensation of Rs. 19,00,000/- then (Rs. 12 lakhs + Rs. 7 lakhs as referred to above) is not on the higher side. For these reasons, I allow the complaint and direct the OP No. 1 to pay to the complainant an amount of Rs. 19,00,000/- (Rs. 12 lakhs towards loss of income and Rs. 7 lakhs towards mental agony) alongwith interest @ 12% p.a. from the date of filing of the complaint i.e. w.e.f01.01.1999 till the date of its realization. As discussed above, OP No 2 hospital is hand in glove with OP No. 1. OP No. 2hospital has concealed the surgery notes from the complainant as well from this court. OP No. 2 hospital again has been ‘deficient in its services’. OP No. 2 hospital is thus directed to deposit an amount of Rs. 20 lakhs (twenty lakhs) in Consumer Welfare Fund of the State maintained by this Commission. A copy of these orders be sent to the Medical Council of India, Medical Council of Delhi,Directorate of Health Services Govt. of Delhi and Guru Nanak Eye Center Govt. of Delhi for taking actions against the OP No. 1 and OP No. 2 hospital. These authorities may also like to advise the enquiry committee who without participation of the complainant in the enquiry proceedings and in the absence of material records submittedits report.

The abovesaid directions be complied with by OP No. 1 and OP No. 2 hospital within a period of sixty days from today failing which interest @ 18% p.a. shall be chargeable on the aforesaid amounts.

  1. Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.

(N P KAUSHIK)
MEMBER (JUDICIAL)

 

 

 

 

 

 

 

 

 

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