CHANDIGARH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
Paramjeet Singh Dhaliwal, President; Rajinder Kumar Goyal & Mrs. Kiran Aibal), Members
Dr. Gagandeep Tathgur – Appellant
versus
Veerpal Kaur and Anr. – Respondents
First Appeal No. 16 of 2020
Decided on 27.1.2021

IMPORTANT POINTS
(1) No proper consent of the complainant was taken before administering the said injection.
(2) Side effects of said injection were never informed.
(3) Amounts to deficiency in service and medical negligence on the part of opposite parties No.1 & 2.
(4) Grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts.

Headnote:

Consumer Protection Act, 1986 – Negligence - Previously covered under Section 14 – Now, Consumer Protection Act, 2019 – Covered under Section 11 - Complainant suffered boil on her nose, approached Opp. Party No.1-Hospital – Complainant visited Opp. Party No.2 for further treatment, was injected “Triamcinolone” 0.5 ml in the nose - After injection, complainant felt unconsciousness, unable to see with her left eye - Matter reported to Opp. Party No.2, who admitted the complainant in Opp. Party No.1-Hospital – Opp. Party No.2 advised complainant to be checked at Global Eye Hospital, Patiala which concluded that Complainant’s eyesight of her left eye had been totally lost and eyesight of right eye had gone weak - Complainant suffered eye disability, mental agony, tension etc. at the hands of Opp. Party No.2 - Complainant filed complaint before the District Commission seeking issuance of directions to opp. parties to pay a sum of Rs. 20 lakhs - No proper consent of the complainant taken before administering the said injection - Side effects of said injection never informed - Amounts to deficiency in service and medical negligence on the part of Opp. Parties No.1 & 2 - Proved Opp. Parties No.1 & 2 grossly negligent while administering aforesaid injection to the complainant - Complainant unable to perform human functions properly - Grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts.

Held: Brief facts, as averred in the complaint, are that the complainant suffered from boil on her nose. She approached opposite party No.1-Hospital on 11.11.2017, where a Slip was issued after charging Rs. 10/- and opposite party No.2 prescribed some medicines thereon. He also advised the complainant to get X-ray of her nose; which was duly got conducted by her. Thereafter, the complainant, along with her sister Gurdeep Kaur, visited opposite party No.2 for further treatment on 17.11.2017; who injected an injection named “Triamcinolone” 0.5 ml in the nose of the complainant, by charging a sum of Rs. 200. However, opposite party No.2 refused to issue any receipt, even despite repeated requests of the complainant, which was required by her husband. After injection of “Triamcinolone”, the complainant felt unconsciousness and she was shifted to Emergency Ward of Civil Hospital, Barnala. She gained consciousness after about 20 minutes and, thereafter, she vomited twice. Besides this, the complainant was unable to see with her left eye. The matter was reported to opposite party No.2, who admitted the complainant in opposite party No.1-Hospital on the same day and in the evening, she was referred/admitted to/in Rajindra Hospital, Patiala on 17.11.2017. However, no doctor checked the complainant at Rajindra Hospital, as it were late night hours. Even no slip was issued by Rajindra Hospital on 17.11.2017, though a number of tests were advised for the complainant; which were got conducted by her husband. The prescription slip was issued only in the morning on 18.11.2017, after the complainant was checked by the Eye Specialist at Rajindra Hospital. On the asking of said Eye Specialist, husband of the complainant contacted opposite party No.2 telephonically, who advised him to get the complainant checked at Global Eye Hospital at Patiala. Accordingly, she was taken to Global Eye Hospital, Patiala, on 18.11.2017, where a number of tests were conducted. The complainant came to know that the eyesight of her left eye had been totally lost and eyesight of right eye had also gone weak; as a result of which she has to bear glasses of 0.5 power on her right eye. It is further pleaded that as per guidelines issued by the manufacturer of the aforesaid injection, the same is not recommended for injecting around/into the eye or certain parts of the nose, due to risk of blindness or damage to the eye(s). Thus, the complainant suffered eye disability, mental agony, tension etc. at the hands of opposite party No.2, who was negligent while injecting the said injection. She requested opposite party No.1 to make payment of Rs. 20 lac towards compensation due to his negligence, but to no effect. Earlier, the complainant filed a complaint before the District Commission on 25.04.2018, but the same was dismissed as withdrawn on 11.05.2018 due to technical errors, with permission to file a fresh complaint. Hence, the complainant filed fresh complaint before the District Commission, seeking issuance of directions to the opposite parties to pay a sum of Rs. 20 lac on account of eye disability, mental agony and tension etc. suffered by the complainant, including Rs. 20,000/- as litigation expenses.

Accordingly, we are of the view that informed consent was required to be taken by opposite parties No.1 & 2 before administering the injection to the complainant. Since eyesight of both eyes of the complainant has been damaged after administration of the said injection, so, the valid informed consent of the complainant before administering the injection was must. The side effects of said injection were never informed by opposite parties No.1 & 2 to the complainant. Such complications should have been informed/discussed before administration of the said injection, but this has not been done in this case. Since no proper consent of the complainant was taken before administering the said injection, as a result of which the eyesight of left the eyes of the complainant has been completely damaged and that of right eye has been damaged to some extent, so the same amounts to deficiency in service and medical negligence on the part of opposite parties No.1 & 2.

Thus, keeping in view the above discussion and the evidence on record, preponderance of probability and inferences, we hold that the complainant has been able to prove her case of deficiency in service and medical negligence against opposite parties No.1 & 2. It is true that medical negligence cases do sometimes involve questions of factual complexity and difficulty and may require the evaluation of technical and conflicting evidence. However, in the present case, the complainant has been able to discharge the onus of proving on a balance of probabilities, the medical negligence and deficiency in service averred against opposite parties No.1 & 2. Thus, it stands clearly proved that opposite parties No.1 & 2 were grossly negligent while administering aforesaid injection to the complainant, as a result of which the eyesight of left eye of the complainant has been damaged the eyesight of right eye has also been affected, when there was no problem in her eyes. As a result of damage to eyes, the complainant is unable to perform human functions properly, as compared to a human having both sound eyes. She has lost most of the joy of life and is deprived of wholesome physical activity on account of damaged eyesight. She is required to get herself checked up from the doctors for whole of her life at particular intervals, in order to avoid complications, by incurring extra expenses for this purpose.

The Hon’ble Supreme Court has also relied upon above said authority in case “Maharaja Agrasen Hospital & others Vs. Master Rishab Sharma & others” Civil Appeal No.6619 of 2016, decided on 16.12.2019, and held as under:-

“11.5.4 The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.”

No doubt, the damage/loss of eye(s) cannot be compensated in terms of money, yet in view of law laid down by the Hon’ble Supreme Court in above referred authorities, age of the complainant, who was just 30 years old at the time of administration of aforesaid injection and the totality of facts and circumstances of the case, we enhance the compensation from Rs. 8,00,000/- to Rs. 9,00,000/-, along with interest at the rate of 7% per annum from the date of filing of the complaint till realization, on account of damage to the eyes of the complainant due to sheer medical negligence and deficiency in service on the part of opposite parties No.1 & 2 and resultant mental agony, harassment, avoidable pain, sufferings caused to the complainant, including medical expenses. (Paras 6, 40, 46 & 56)

Result: First Appeal No.16 of 2020 of Opp. Party No. 2 & First Appeal No.648 of 2019 of Opp. Party No. 3 dismissed - First Appeal No.793 of 2019 filed by the complainant partly accepted - Impugned order modified, Compensation of Rs. 8,00,000/- enhanced to Rs. 9,00,000/-.