Health Secretary, Ministry Of Health And Ors. vs K. Albert And Ors.

THE complainant/respondent visited Ophthalmic Hospital Medical College, Thiruvananthapuram on 08.5.1996 complaining of watering, pain and redness in his left eye. He was given an injection and advised to use Ciplox eye drops and Gentamycin ointment. The aforesaid visit was followed by subsequent visits on 9, 10, 11, 12, 13th and 14th May, 1996. According to the complainant, since the pain in his eyes was unbearable, he requested the attending Doctor on 13.5.1996 to admit him as an indoor patient but the refused to do so and advised him to continue the same treatment. According to the complainant, he lost the vision in his left eye on 14.5.1996 and was admitted in Chaithanya Eye Hospital and Research Institute at Thiruvananthapuram. Though, pus was extracted from his left eye and he was subjected to various investigations, his left eye could not be saved and had to be removed due to a perforated corneal ulcer. Alleging negligence on the part of the doctor of the aforesaid hospital in his treatment, he approached the concerned District Forum by way of a complaint.

THE complaint was resisted by the opposite parties, including the petitioners before this Commission, on the ground that the illness of the complaint was diagnosed as corneal ulcer on the anterior segment for which standard medicines were prescribed to him. It was further stated in the reply that in spite of application of medicines there is every possibility of the corneal ulcer getting perforated, particularly when it is a non -healing ulcer. It was further stated in the reply that the organism that caused ulceration might have gained access to the interior of the eye resulting in endophthalmitis. It was also stated in the reply filed by the opposite party that on 12.5.1996 considerable reduction in the size of the ulcer was noted and at no point of time there was any evidence of the worsening of the ulcer. According to the petitioners, had there been any sign of deterioration in the condition of the complainant, he would have been admitted as in indoor patient.

VIDE its order dated 27.6.2001, the concerned District Forum directed the petitioners before us to pay a sum of Rs. 2.00 lacs as compensation to the complainant, along with interest and cost of litigation quantified at Rs. 2,000/ -. Being aggrieved from the order passed by the District Forum, the petitioners approached the concerned State Commission by way of an appeal. Vide impugned order dated 16.12.2009, the State commission, while maintaining the quantum of the compensation awarded to the complainant, reduced the interest from 16.5% per annum to 12% per annum. Being still dissatisfied, the petitioners are before us by way of this revision petition.

DURING the course of hearing, the learned counsel for the petitioners submitted that since no charges were admittedly taken from the complainant, in their hospital, he is not a ''consumer'' within the meaning of Section 2(1) (d) of the Consumer Protection Act, 1986. He however, fairly pointed out that a Notification issued by the State government and available on the file of the District Forum, would show that the charges were not levied only on those patients who had less than the income prescribed in the said notification. We therefore, proceed on the basis that though no charges were taken from the complainant for his treatment, such charges were being recovered from the patients whose income was higher than the cut -off income stipulated in the orders issued by the State Government. In Indian Medical Association v. V.P. Shantha and Ors. : (1995) 6 SCC 651, the Hon''ble Supreme Court clearly held that the services rendered by Government Hospitals would fall within the ambit of Section 2(1)(o) of the Consumer Protection Act, where charges are required to be paid by everybody availing of the services, as well as where charges which required to be paid by persons availing of services but certain categories of persons, who cannot afford to pay are rendered services free of charge. Considering the orders issued by the Government of Kerala, it is obvious that the complainant fell into the category of the persons, who were not in a position to pay the charges for the service rendered in the hospital and that is why, no charges were recovered from him. It is also evident that charges were being recovered from those whose income was more than the cut -off stipulated in the orders of the Government. Therefore, the services rendered in the aforesaid hospital would fall within the purview of Section 2(1)(o) of the Consumer Protection Act.

COMING to the merits of the case, it is an admitted position that the complainant visited the Government hospital every day from 8.5.1996 to 14.5.1996. It is also an admitted position that no investigation was advised to the complainant in the aforesaid hospital, at any point of time and the same medicines i.e. Gentamycin ointment and Ciplox eye drops were advised to him. The very fact that the complainant was visiting the Government Ophthalmic Hospital every day is a clear indicator that the medicines advised to him had not resulted in improvement of his condition. Though, it is claimed by the petitioners that a reduction in the size of the ulcer was noticed on 12.5.1996, the doctor who checked the complainant on 12.5.1996 has not been produced to prove the alleged reduction in the corneal ulcer. The case of the complainant in this regard is that there was absolute no reduction of the ulcer and the medicines advised to him did not provide any relief to him. According to Dr. Jayaprasad B, no reduction in the size of the ulcer is noted in Ex. P -1. It has also come in the deposition of Dr. Jayaprasad of Chaithanaya Eye Hospital that the diagnostic test is carried out to find out whether the infection is due to Bacteria or Fungus though the infection cannot be ruled out even if the result of the test is negative and when the ulcer is a small one, the chances of the positive test are almost negligible, since very little pus comes out of the infected eye. In our opinion, the doctors treating the complainant in Government Ophthalmic Hospital ought to have advised diagnostic tests particularly microbiological examination with a view to find out whether the infection was bacterial or fungal. The treatment advised to the patient would depend upon whether the result of the investigation indicates bacterial infection, fungal infection or both. We are not inclined to accept the contention that the diagnostic tests would have been of no use and the treatment would have necessarily been the same irrespective of whether the infection has bacterial, fungal or both. In case, the result of the diagnostic tests was positive, the doctors could have changed the treatment, on the basis of the report of the tests and in case, it was negative, they could have thought of either continuing the same treatment or advising another medicine, considering that the medicine initially advised to the complainant had not resulted in improving his condition. In fact, depending upon the extent to which the corneal infection has spread, the doctors could even consider surgical intervention, including corneal transplant in appropriate cases. According to Dr. Kala of the Government Ophthalmic Hospital, they cannot record finding of a bacterial ulcer without scrapping material and microscopic examination. Even that was not done in the Government Hospital. The doctors in ophthalmic hospital ought to have advised appropriate investigation in order to identify the cause of the infection and decide upon the future course of treatment of the complainant. They however, took the ailment of the complainant very lightly despite the fact that the corneal infection could have resulted in permanent deprivation of the eyesight of the complainant. Therefore, they were negligent in rendering the services to the complainant by not advising appropriate investigations.

IT has also come in the deposition of the complainant that on 13.5.1996, when his pain became unbearable, he requested the doctors to admit him in the hospital so that indoor treatment may be given to him. Since no doctor, who treated the complainant from 9.5.1996 to 13.5.1996 has been produced as witness, the aforesaid deposition of the complainant remains virtually unrebutted and uncontroverted and therefore, we have no hesitation in holding that the doctors did not admit the complainant as an indoor patient, despite there being no improvement in his condition and the patient seeking indoor treatment. It has come in the deposition of PW3 Dr. Jayaprasad, that in the case of the complainant, he ought to have been treated as an indoor patient if so requested by him. Even otherwise, considering that five days had already expired by the time the complainant was examined by the doctor on 13.5.1996, and the medicines advised to him had not resulted in any improvement, he ought to have been admitted as an indoor patient. It would be difficult to dispute that the quality of treatment given as an indoor patient would be vastly different form the quality of the treatment which a patient can take as an OPD patient. The complainant therefor, ought to have been admitted as an indoor patient on 13.5.1996. The doctors at the ophthalmic hospital were negligent in not admitting him as an indoor patient on 13.5.1996, despite the request made by him.

IT has also come in the deposition of PW3 that the corneal ulcer of the complainant was already perforated when he came to their hospital on 15.5.1996. It is not known when the said ulcer got perforated, whether it was perforated when the complainant first came to the Government hospital on 8.5.1996 or it got perforated during the course of the treatment at the Government Ophthalmic Hospital. There is no indication in the OPD card of the complainant, Exhibit P -1, to show that the doctor treating the complainant had noted the perforation of the said ulcer. We fail to appreciate how the doctors in the Government hospital could have failed to notice the perforation of the ulcer when it was noticed by the doctors of the private hospital, which the complainant visited on 15.5.1996. Obviously there was negligence on the part of the aforesaid doctor in checking the complainant since perforation of the ulcer was not noticed by them.

IT has come in the deposition of Dr. Jayaprasad that the chance of the ulcer of the complainant getting cured was 50%. Even if there was fifty -fifty chance of the eye of the complainant being saved on proper treatment, the doctors at the Government Hospital ought to have tried their best by advising all relevant investigation and moulding the treatment in the light of the findings of the investigations. Unfortunately, they did not make a sincere attempt to save his eye. Had they advised the requisite investigations, given best available treatment and the complainant was yet to lose his eye, they could not have been blamed, but they took his problem rather lightly, exhibiting utter lack of sincerity and devotion to their duty besides non -sensitivity to the sufferings of the patient.

IT was contended by the learned counsel for the petitioners that the treatment given to the complainant being appropriate, as stated by Dr. Jayaprasad, the loss of the eye of the complainant was unavoidable and cannot be attributed to any negligence on the part of the doctors at the Government Ophthalmic hospital. We however, are unable to accept the contention that Gentamycin ointment and Ciplox eye drops was the only available treatment for treatment of even a complicated ulcer of the cornea and no other step could have been taken by the doctors to prevent the loss of the eye. The treatment of such ulcers as noted in the Parson''s Diseases of the Eye, by Stephen J.H. Miller (Eighteenth Edition) is as follows: "Treatment of a perforated ulcer - If perforation has occurred, the treatment depends upon its size and situation. If it is small and in the pupillary area, prolapse of iris is not to be feared. Rest in bed, the continued use of antibiotics, atropine, and a firmly applied bandage suffice: all forced expiration - blowing the nose, coughing etc. - must be avoided. If a small perforation is over the iris, adhesion to the cornea usually occurs to form an adherent leucoma. This may become detached when the anterior chamber reforms, or may be drawn out into a fine thread in which case no special treatment is required. A further option is the use of a tissue adhesive such as carbohexoxymethyl 2 -cyanoacrylate monomer which is put up in an 0.5 ml glass file. It is applied to the area of perforation after careful debridement. The surface is dried with a sponge and a small drop of the tissue adhesive from the undersurface of a bent iris repositer is placed immediately over the perforation. Drying of the adhesive may take 5 to 10 min, after which the anterior chamber may have reformed and a continuous -wear soft contact lens placed, or a definite surgical procedure such as a penetrating keratoplasty or conjunctival flap undertaken".

AS noted earlier, the ulcer of the complainant was found to be perforated when examined in Chaithanya Eye Hospital and Research Institute. It is not as if there is no treatment for a perforated ulcer. The following is the treatment prescribed for a perforated ulcer in the above referred Treatise: "If the ulcer progresses despite these therapeutic measures, the removal of necrotic material may be hastened by scraping the floor with a spatula, or the ulcer may be cauterized. Cauterization may be performed with pure carbolic acid or trichloracetic acid (10 -20%). If despite these measures ulceration progresses, pain continues and perforation seems imminent, the latter event may sometimes be anticipated with advantage by paracentesis. By this procedure the aqueous is evacuated slowly and the more dangerous results of spontaneous perforation may be avoided, while, as has already been pointed out, the nutrition of the diseased cornea is considerably improved". In the case before us, the doctors in the Government Ophthalmic hospital did not even explore the possibility of the above referred options available to them. Therefore, they were clearly negligent in rendering their services, while treating the complainant in the aforesaid hospital.

FOR the reasons stated hereinabove, we are of the considered view that there were a number of deficiencies in the services rendered by the doctors at the Government Ophthalmic hospital to the complainant and they were clearly negligent while treating him for the corneal ulcer of his eye. The view taken by the State Commission therefore, does not call for any interference by us in exercise of our revisional jurisdiction. We find no merit in the revision petition and the same is accordingly dismissed with costs to the complainant quantified at Rs. 10,000/ -.