Careless Laser Eye Surgery : Rs.50 lakhs saddled upon Eye hospital.

Case Details :

MS. PRASANNA LAKSHMI V/s. MAXIVISION LASER CENTER PVT. LTD., Hyderabad

Decided on 05/04/2019

by Hon. National Commission

Before : 

HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT and Mrs. M. Shreesha, Member

Judgment Link :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F196%2F2013&dtofhearing=2019-04-05

Facts in brief :

Both the parties have approached to national commission against the Judgment and Order passed by the Andhra Pradesh State Commission, Complainant  for enhancement of compensation and Hospital for dismissal of Complaint.

1.The Complainant - Petitioner-in-person was suffering from short sight problems and hence was approached to the Respondent Hospital. It is to be noted that complainant and her family members used to go same hospital whenever they had eye problems. 

2. It is averred that one Dr. Ravi Shanker of the Lasik Centre suggested Lasik Surgery for the Complainant to be able to see well without using spectacles and accordingly it was performed on 16.02.2008 . However the complainant further contended that she was not explained about the risks involved in the surgery and moreover the Surgery was agreed to be performed by said Dr. Ravi Shaknar, who was experienced in such surgeries, but in fact it was performed by one Dr. Satish Gupta. So also the  Junior Doctor explained her but did not mention the presence of microstriae.

3. After the Surgery, Complainant had experienced loss of vision, both in clarity and quality and further suffered severe glare, contra sensitivity, hazy vision and light distortion. Dr. Ravi Shankar tried different lenses but there was no improvement. 

4. Thus the Complainant was approached to another Doctor, who then referred her to  Dr. Millind Bhide of Hyderabad Eye Centre, who after examining her  observed wrinkles in both her eyes and advised for another Surgery to stretch the flaps , within two to seven days and also told her about the risks involved. thereafter  the Complainant approached Dr. Satish Gupta with this information, it was alleged that he behaved very harshly. she once again consulted Dr. Satish Agraharam who referred her to Dr. Srinivas Rao of Darshan Eye Clinic at Chennai who on 10.07.2008 examined her and informed her that due to wrinkles in the corneal flaps there was loss in her vision and the vision acuity did not improve and the corrective surgery ought to have been performed immediately.

5. It is averred that Dr. Ravi Shanker though noticed wrinkles, did not advise for any corrective surgery and it was averred that the damage caused to her eyes was irreversible and she has to live with blurred and impaired vision all her life. Her chances of a bright career and getting married are totally diminished. 

Thus she claimed Rs. 1 Crore compensation. 

Defense :

1. The Hospital refuted all the allegations of Negligence. It is axiomatic that every Surgery is associated with risk. It was alleged that the Complainant never opted for Dr. Ravi Shankar, who is having 10 years of Experience, whereas  Dr. Satish Gupta is a Senior Doctor with an experience of 38 years

2. Throughout the Surgery, the Complainant was conscious and was talking by responding to Dr. Satish Gupta, who is a visiting Doctor.The Doctors of Lasik Centre would have handled the problem if she would have come for proper follow up after three weeks.

3. It was also contended that On 08.03.2008 no microstriae was observed by Dr. Ravi Shanker and the Complainant was requested to come after 3 months but she did not turn up.  Had the microstriae been noticed in her right eye on 22.02.2008 the endorsement to that effect would have found place in the medical record.  There was a small hyperopic shift, which was noted on 08.03.2008 as it is a regular practice to stop FML eye drops in such a case.  It was also pleaded that Complainant was informed that even after undergoing Lasik Surgery she would require a small number for fine work. 

4. Moreover the expert committee of Superintendent, Sarojini Devi Eye Hospital, Hyderabad also agreed that there was no medical negligence. 

Held :

1. The National Commission heard the parties at length, perused the documentary evidence and relied upon various judgments of Supreme Court . The petitioner -complainant argued in person. The National Commission after perusing the Consent Form observed that the Consent Form does not anywhere evidence that the Complainant may suffer from common complications such as dry eyes or any other complications.

2. An Informed Consent ought to have been taken from the Complainant with all the common complications which may arise after Lasik even the issue of ‘Dry Eyes' which admittedly is a common complication, has not been mentioned in the consent form to have given an opportunity to the Complainant to exercise her choice of going into the Lasik Surgery or not.

3. In today’s day and age, Lasik Surgeries are being advertised to be extremely simple and uncomplicated.  We are of the considered view that Medical Professionals involved in performing Lasik Surgeries should at least explain the common complications like Dry Eyes, for example, prior to the performance of the Surgery. 

4. On facts it was held that  the first prescription given by the Treating Doctor shows the presence of microstriae on 22.02.2008 itself.  Therefore it is evidenced that microstriae had occurred Post Lasik Surgery.  

5.  The reason for occurrence of microstriae  has not been explained and specifically there is no plea that it is a common complication.  Then this post-operative complication ought to have been dealt with ‘due care and caution’.

6. While rejecting the expert opinion, it was held that that when the prescription given by all the subsequent Doctors showed 6/12 partial vision, it is not understood as to how the Sarojini Devi Hospital has noted 6/6 partial and it appears to be prima facie an error in the recording of the vision power.

7. It was held that the Post Lasik complications which occurred were neither explained to the Patient nor were the requisite steps taken to educate the Patient about the prognosis, to enable her to exercise her choice of opting for any line of treatment which perhaps would rectify the situation.  The Treating Doctor not only kept her in the dark about  the treatment for microstriae and the prognosis thereof, but also did not take reasonable care to avoid decentered ablation.

8. The Commission confirmed the order of Stat Commission and observed that there is no infirmity in the order as the deposition of the Treating Doctor read together with the prescriptions, the continuous post treatment undergone by the Complainant in an attempt to correct the complication, together with the Medical Report of LV Prasad Eye Institute which specifically mentions that her visual acuity has fallen to 20/80 in the right eye and 20/64 in the left eye, prove that there was negligence on behalf of the Lasik Centre.

9. Enhanced Compensation to Rs.50 lakhs : How it was calculated . 

a. While enhancing the complainant, MBA graduate, it was observed that the complainant was just 31 years of age and was earning Rs.30,000/- per month in a private firm. The commission agreed to the arguments of Complainant that due to her reduced visual acuity as noted in the report given by the LV Prasad Eye Institute, her her marriage prospects have been reduced and also her physical capacity to work

b. It has undoubtedly affected her professional career and also her personal life.  It is submitted that this incident had happened at a very young age of 28 years.  Even if there was 10% hike in her salary per month she would have earned Rs.43,923/- per month and the Complainant has calculated the loss from 2008 at Rs.21,27,836/- and from 2013 onwards till she attained the age of 65 which was more than double the same and enhanced the compensation to Rs.50 lakhs + 9% interest + Rs.25,00/- towards costs. 

it relied upon the famous judgment of hon. ApexCourt in the case of   V. Krishnakumar Vs. State of Tamil Nadu & Ors. (2015) 9 SCC 388, wherein it was held that :.  

“Quantification of Compensation

17. The principle of awarding compensation that can be safely relied on is restitution in integrum.  This principle has been recognized and relied on in Malay Kumar Ganguly vs. Sukumar Mukhejee, (2009) 9 SCC 221 and in Balram Prasad’s case (supra), in the following passage from the latter:-

    “170. Indisputably, grant of compensation involving an accident is within the realm of law of torts.  It is based on the principle of restitution in integrum.  The said principle provides that a person entitled to damages 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. (See Livingstone v. Rawyards Coal Co.).

An application of this principle is that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong.  It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event.” 

10. Whether a Corneal Surgeon can undertake a Lasik Surgery or not :?

This point was also raised during arguments by the Complainant. it was argued that she specifically chose Dr. Ravi Shanker but Dr. Satish Gupta, who is not an experienced Lasik Surgeon has performed the operation, we are of the view that this Commission shall defer from making any observations with respect to whether a Corneal Surgeon can undertake a Lasik Surgery or not.  The Commission held that We do not wish to comment on the qualification or otherwise of the Treating Doctor.

Indeed it's a very important judgment. As observed, in these days laser eye surgeries have got cosmetic background. There are many hospitals/clinics who offer such kind of surgeries. This judgment again underlines the importance of "INFORMED CONSENT", which has no alternative. Had the consent was proper, the Hospital would have observed from the liability. "A stitch in time saves nine" . This proverb aptly prescribes importance of informed consent, though proper consent does not mean that a Doctor cannot be held as negligent. 

The part of enhanced compensation is also an eye opener for Doctors. It supports the claim of Doctors for capping the Compensation or to saddle heavy fine upon complainant if the complaint fails.  

Thanks and Regards

Adv. Rohit Erande

Pune.©