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• Dr.
  K. Krishnankutty, Vijayasree Eye
  Hospital v. V.M. Vasu
  
  2001 (1) CPR 603
  
    
  
  (i) Consumer Protection Act,
  1986 – Section 12 and 17 – Medical
  negligence – Courts would indeed be
  slow in attributing negligence -
  Courts would indeed be slow in
  attributing negligence on part of
  doctor if he has performed his duties
  to best of his ability with due care.
  
     
  
  Held: In 1996 (2) S.C.C. 634 – Achut
  Rao Hari Bhau Khoduva and others v.
  State of Maharashtra, the Supreme
  Court held “the skill of medical
  practitioners differ from doctor to
  doctor. The very nature of the
  profession is such that there may be
  more than one course of treatment
  which may be advisable for treating a
  patient. Courts would indeed be slow
  in attributing negligence on the part
  of a doctor if he has performed his
  duties to the best of his ability with
  due care and caution. Medical opinion
  may differ with regard to the course
  of action to be taken by a doctor
  treating a patient. But as long as the
  doctor acts in a manner which is
  acceptable to the Medical profession
  and the Courts finds that he has
  attended on the patient with due care,
  skill and diligence and if the patient
  does not still survive or suffers a
  permanent ailment, it would be
  difficult to hold the doctor to be
  guilty of negligence. We had adopted
  this principle in deciding the case
  reported in 1999 (3) CPR 442.
  
  (Para 16)
  
       
  
  (ii) Consumer Protection Act,
  1986 – Sections 12 and 17 – Medical
  negligence – Complainant was operated
  of his left eye and he lost eye sight
  – Claim for compensation – Defence
  plea that eyesight loss was due to
  presence of organised and present
  vitreous haemorrhage with tractional
  retina detachment due to diabetics -
  Expert evidence that retinal
  detachment could not be found out by
  ophthalmoscopy as media of left eye of
  complainant was not clear. – No
  negligence or deficiency could be
  attributed on opposite party – Order
  of District Forum awarding
  compensation was liable to be set
  aside.
  
  (Paras 15, 19 & 20)
  
        
  
  Result: Appeal allowed.
  
  Cases referred:
  
    
  
  1. Achut Rao Hart Bhau Khoduva
  and others v. State of Maharashtra,
  1996 (2) SCC 634. (Para 16) 
  
  2. 1996(3) CPR 442. (Para 16)
  
  3. Roe v. Minister of Health,
  1954(2) Q.B. 66 (Para 17) 
  
  4. Kailash Kumar Sharma v. Dr.
  Haricharan Madhu, 1997 (2) CPR 126..
  
   
  
  Counsel for the parties:
  
    
  
  For the Appellant : Shri S. Reghukumar,
  Advocate.
  
    
  
  For the Respondent : Shri M. Premchand,
  Advocate.
  
     
  
  IMPORTANT POINT
  
    
  
  Courts would be slow in attributing
  negligence on part of doctor if he has
  performed his duties to best of
  ability with due care and caution.
  
    
  
  ORDER
  
    
  
  K. Madhuri Latha, Member –
  
  The opposite in O.P. No. 784/96 of the
  Thrissur District Forum has filed this
  appeal against the order of the Forum
  dated 31/12/1998.
  
       
  
  2. The complainant’s case is
  that he went to the opposite party’s
  hospital on 28.9.1995 for the
  treatment of his eye. He was treated
  as an outpatient and medicines
  prescribed were regularly taken. The
  disease did not subside and he again
  approached the opposite party on
  28/3/1996. The opposite party after
  assuring that the ailment will be
  cured, operated his left eye,
  29/3/1996. After operation he
  completely lost eyesight of the left
  eye. He was advised by the opposite
  party to go to Aravind Eye Hospital,
  Madurai for further treatment. Even
  the expert and costly treatment there,
  could not cure the damage caused by
  the earlier operation. Hence he filed
  this complaint alleging negligence on
  the part of the opposite party
  claiming Rs.1,95,500/- as compensation
  for loss and injury.
  
    
  
  3. The opposite party appeared
  and filed version denying deficiency
  of service and negligence on his part.
  Opposite Party submitted that the
  operation was conducted after all
  necessary tests and after detailed
  examination and the eye sight was lost
  not as a result of the surgery but due
  to presence of organised and present
  vitreous haemorrhage with tractional
  retina detachment due to diabetics.
  There was no proximate connection
  between cataract operation and
  diabetic retinopathy. Opposite party
  also contended that the treatment to
  the complainant was free of cost and
  prayed for dismissal of the complaint.
  But the District Forum directed the
  opposite party to pay Rs. 25000 as
  compenstion for mental harassment,
  physical suffering and inconvenience
  caused to the complainant and also
  Rs.20000/- for medical expenses and
  Rs.1000/- towards costs of the
  proceedings.
  
     
  
  4. Aggrieved by the above
  order, the opposite party has come in
  appeal.
  
     
  
  5. The main points highlighted
  in the appeal memorandum are that the
  reasoning of the Forum is erroneous
  resulting from non-consideration and
  misappreciation of material documents.
  The oral evidence has also not been
  properly considered.
  
     
  
  6. We called for the records
  from the District Forum. The
  complainant’s evidence consists of the
  oral evidence of PWs 1 and 2 and
  Exhibits A1 to A20. The opposite party
  was examined as RW1 and Exhibits B1 to
  B14 marked on his side. 
  
    
  
  7. PW1 is the complainant. He
  states that his left eye was operated
  by the opposite party. For about 2
  years, his eyesight was bad. He
  understood that he was suffering from
  diabetics when the opposite party
  examined him six months earlier than
  the operation. In the evening of the
  date of operation the bandage was
  removed and medicine was applied by
  the nurse. He could not see anything
  then. After two days the opposite
  party examined him.
  
      
  
  8. Opposite party gave an
  injection as according to him the loss
  of eyesight was due to want of
  sufficient blood pressure. After six
  days he was discharged from the
  hospital. There was no eyesight for
  the operated eye. The opposite party
  informed that it may be due to
  excessive smoking and nothing could be
  done by him to give him relief.
  Complainant wanted to go to the eye
  hospital at Madurai and the opposite
  party gave him a reference letter. The
  letter and prescription given by the
  opposite party hospital are marked as
  Exts. A1 to A7 and those from the
  Madurai hospital are marked as Exts.A8
  to A12. The bills for purchase of
  medicine from outside are marked as
  A13 to A20. The complainant deposes
  that he was employed in a Snack Bar at
  Madras and was getting a salary of
  Rs.3500/- per month. He further says
  that his eyesight was lost due to
  operation and and he had spent
  Rs.20000/- for the operation. In cross
  examination he admits that the sight
  of the left eye was worse than that of
  the right eye. When he met the
  opposite party on or about 28th of
  February, the opposite party had
  opined that the complainant was
  suffering from cataract and it should
  be operated. When he met the opposite
  party for the second time his blood
  and urine were tested and E.C.G.
  taken. The complainant admits that all
  the tests prescribed by the doctor
  including scaning were done. He was
  wearing spectacles for twenty years
  and he was a smoker for about fifteen
  years. His eyesight was diminishing
  slowly. For a direct question”
  (Sic Matter in other language).
  
     
  
  9. PW 2 is Dr. Mary Kurtan,
  Professor of Ophthalmology of the
  Trichur Med ical College Hospital. She
  deposes that Vitreous haemorrhage can
  be caused due to many reasons. Retinal
  detachment can also be caused by many
  reasons including Vitreous haemorrhage.
  Retinal detachment can be found out by
  oph thalmoscopy examination if the
  media is clear. Lens implantation can
  be done even in a diabetic patient. In
  cases where retinal detachment is
  found out earlier, lens implantation
  is not done. According to PW2 even
  without slit lamp microscopy test
  cataract operation is done. Lens can
  be tested with even miscroscope of
  ophthalmoscope. She was confronted
  with a statement in the text book
  “Parson’s diseases of the
  eye” that lens cannot be
  thoroughly examined without the
  assistance of the slit lamp or
  ophthalmoscope. Her answer is that the
  said statement is not wrong. The tests
  to be conducted before a patient is
  operated for cataract is also stated
  by her in detail. She admits that in
  cases of retinal function disorders
  cataract operation need not be useful.
  The witness also says that 100%
  success could not be achieved even if
  all the tests are conducted. She does
  not rule out the possibility of
  vitreous haemorrhage due to retinal
  detachment. According to her it is not
  necessary to cause vitreous
  haemorrhage in all cases of
  antiglaucoma surgery. In cross
  examination she was asked whether
  diabetic retinopathy can be detected
  if the lens is opaque. She answers
  only if the media is clear this could
  be found out. If haemorrhage is
  present media will not be clear. To
  avoid complictions like hyper mature
  cataract, cataract extraction may
  become necessary even in cases of
  patients suffering from diabetic
  retinopathy. If diabetic retinopathy
  is present further treatment will
  become necessary. Organised and fresh
  vitreous haemorrhage can be caused due
  to diabetic retinopathy which may
  result in loss of vision.
  
       
  
  10. RW1 is the opposite party
  Dr.K. Krishnankutty. He admits having
  treated the complainant. He proves
  Exts. B1 to B14. Ext.B1 is the
  outpatient record and Ext.B2 is the
  inpatient record relating to the
  complainant. The complainant came to
  him on 28.8.1995 initially. His
  eyesight was tested. The right eye had
  6/12 vision. The left eye could make
  out the fingers held only a distance
  oftwo meters. He could not read. His
  blood sugar was tested. He was a
  smoker and he was warned that
  diabetics and smoking will impair his
  eye sight. Test was conducted to find
  out the presence of sinusitis and gums
  were checked up. The eye pressure was
  also examined. Again tests were
  conducted a day before the opeation.
  Then the left eye sight was very
  meagre. He could identify only the red
  light. Cataract operation had to be
  urgently conducted to avoid bursting
  and unbearable pain. The patient was
  told about all this and he was
  informed that the operation is
  complicated. The patient was told
  about all this and he was informed
  that the operation is complicated. The
  patient expressed his willingness for
  operation in writing. He was admitted
  in the hospital on the 28th and
  operated on the 29th. Next day when
  the bandage was removed there was only
  slight bulging of the eye which was
  usual. Again bangage was applied and
  on the third day eyesight was
  examined. He could not see any light.
  Direct and indirect, opthalmoscopic
  tests were conducted. It was directed
  that he was having both new and old
  vitreous haemorrhage. For confirmation
  slight lamp microscope examination was
  done. It was confirmed that he was
  having organised and fresh heamorrhage
  and the patient was advised to take a
  second expert opinion and referred him
  to the Madurai Hospital. The report
  from the said hospital was brought by
  the patient and shown to the opposite
  party. The loss of vision is due to
  diabetic retinopathy and smoking. RW1
  says that he had conducted all the
  tests, there was no negligence or want
  of deligence on his part in treating
  the patient and there was no nexus
  between the operation and the loss of
  eye sight.
  
     
  
  11. Ext. B3 is the record to
  show that sonography test conducted
  before the operation. Only if the
  heamorrhage is very heavy, it could be
  find out by this method. RW1 says that
  he did not find any presence of
  vitreous heamorrhage before the
  operation.The patient was referred to
  Aravind Eye Hospital, Madurai for
  specialised surgery. The witness
  denied negligence and want of care on
  his part.
  
    
  
  12. Exts. A1 to A20 proved by
  the complainant as PW1. It is evident
  that the surgery was conducted by the
  opposite party in the left eye of the
  complainant, had to pay for the same
  both in the hospital run by the
  opposite party and also in the Aravind
  Eye Hospital, Madurai. The complainant
  was referred by the opposite party for
  expert opinion and treatment to Dr.
  Namperumal Swamy of Aravind Hospital.
  It is also beyond controversy that the
  complainant did not get any relief by
  the surgery or treatment and the
  condition of his left eye became
  worse. But the question to be
  considered is as to whether there was
  any negligence or deficiency in
  service on the part of the opposite
  party in advising the complainant, in
  prescribing medicines, in conducting
  the surgery and in the post
  operational care meted out to the
  complainant. It is relevant to note
  that the complainant admists that he
  was a smoker for more than twenty
  years and was using spectacles. Even
  according to him his left eye sight
  was very poor. When he first came to
  the opposite party in August, 95, he
  was examined and on finding that he
  was a diabetic patient advice was
  tendered that surgery could be
  conducted only after controlling
  diabetics. From Ext. B1 and B2 it is
  established that initially he was
  treated as an outpatient and later as
  an inpatient for operation. Ext. B5 is
  the blood sugar report dated
  27/3/1996. Ext.B3 is the
  ultrasonography, B4 is the blood
  chemistry report. Ext.B6 is the
  biochemistry report. Ext. B7 is the
  dental hygience report, Ext. B8 is
  again the biochemistry report and B9
  the clinical chemistry report. B10 is
  the urine test report and B11 is the
  urine C and S report. B13 is the
  pre-operative instructions and B14 is
  the E.C.G. of the complainant dated
  4/3/1996. Complainant frankly admits
  that all the tests prescribed by the
  opposite party were taken before the
  operation.
  
     
  
  13. The District Forum went at
  a tangent and doubted the tests
  conducted for the following reasons.
  
     
  
  (a) Ext. B1 and B2 the
  inpatient and outpatient cards do no
  show that tests have been conducted.
  
  (b) The test reports are of
  different clinics and hospitals and as
  the tests were not conducted by the
  opposite party in his hospital they
  could not be relied on.
  
  (c) These tests are done at the
  instance of the opposite party before
  PW1 was operated upon and hence not
  reliable.
  
     
  
  Apart from the above, opposite party
  was not complied with the five
  preliminary tests which are mandatory
  before a patient can be operated upon
  and intraocular lens could be
  implanted. For these and for not
  conducting opthalmoscopic test it was
  held by the District Forum that
  opposite party has failed to discharge
  his duty to conduct tests and find out
  vitreous heamorrhage before the
  operation.
  
     
  
  14. We have to observe that the
  five tests propounded in the text book
  namely “Person’s diseases of the
  Eye” VIIIth Edition by Stephen -
  J.H. Miller, only says that the tests
  are only valuable. It is nowhere
  stated that these tests are mandatory.
  
    
  
  15. One has to go by the expert
  evidence available in the case. We
  have summarised earlier the evidence
  of PW2. It is an admitted fact that
  the media of the left eye of the
  complainant was not clear. His vision
  was lazy and eyelens was opaque. The
  retinal detachment could be found out,
  according to PW2 by Opthalmoscopy
  examination only if the media is
  clear. She says that lens implanation
  can be done even in a diabetic
  patient. The view expressed in
  Parson’s Diseases of the Eye” has
  been erroded by the advancement of
  medical science. It is true lens
  implantation is not to be attempted in
  a patient having retinal detachment.
  In this case retinal detachment could
  not be found out because of the
  condition of the eye of the
  complainant. We anxiously analysed the
  evidence of PW2 to assess that the
  treatment and surgery on the patient
  evidences any deficiency in service or
  negligence. We could not find any one
  of the deficiencies alleged by the
  complainant is post operative namely
  that the bandage was removed by the
  nurse on the same evening and not by
  the doctor. But the opposite party in
  his deposition says that the bandage
  was removed in his presence after
  three days. It does not stand to
  conviction that a nurse will remove
  the bandage on the same evening of the
  operation. It seems that the
  complainant is anxious to allege some
  deficiency on the opposite party. It
  is alleged in the notice of the
  complainant dated 3/6/1996 that
  sufficient precautions were not taken
  by the opposite party in treating him.
  In his evidence as PW1 he admits that
  all the necessary tests as prescribed
  by the opposite party were taken.
  There seems to be no consistant case
  for the complainant that the opposite
  party assured him complete cure by a
  minor operation. The fact that the
  operation was not minor is evident
  from the letter of consent given by
  the complainant before operation. In a
  case of minor surgery no such consent
  letter is required. On appreciation of
  the totality of evidence we are of the
  view that no negligence or deficiency
  in service can be attributed on the
  opposite party.
  
     
  
  16. In Achut Rao Hari Bhau
  Khoduva and others v. State of
  Maharashtra, the Supreme Court held
  the skill of medical Practitioners
  differ from doctor to doctor. The very
  nature of the profession is such that
  there may be more than one course of
  treatment which may be advisable for
  treating a patient. Courts would
  indeed be slow in attributing
  negligence on the part of a doctor if
  he has performed his duties to the
  best of his ability with due care and
  caution. Medical opinion may differ
  with regard to the course of action to
  be taken by a doctor treating a
  patient. But as long as the doctor
  acts in a manner which is acceptable
  to the Medical profession and the
  Court finds that he has attended on
  the patient with due care, skill and
  diligence and if the patient does not
  still survive or suffers a permanent
  ailment it would be difficult to hold
  the doctor to be guilty of negligence.
  We had adopted this principle in
  deciding the case reported in 1999 (3)
  CPR 442. This case was brought to our
  notice by the learned counsel for the
  appellant. 
  
      
  
  17. Lord Denning said in Roe v.
  Minister of Health “we would be
  doing a disservice to the community at
  large if we were to impose a liability
  on hospitals and doctors for
  everything that happens to go wrong.
  Doctors would be lead to think of
  their own safety than the good of
  their patients, initiative would be
  stiffed and confidence shaken. A
  proper sense of proportion requires us
  to have regard to the condition in
  which hospitals and doctors have to
  work. We must insist a due care for
  the patient at every point but we must
  not condemn as negligence which is
  only a misadventure”.
  
    
  
  18. The same law Lord in
  Hatcher v. Black (1954) Times 2nd July
  explained the law on the subject of
  medical negligence against doctors and
  hospitals in the following words.
  “In a hospital when a person who
  is ill goes for treatment, there is
  always some risk, no matter what cure
  is used. Every surgical operation
  involves risks. It would be wrong and
  indeed bad law to say that simply
  because of misadventure mishap
  occurred, the hospitals and doctors
  are thereby liable. It would be
  disastrous for the community if it
  were so. It would mean that if a
  doctor examining a patient or a
  surgeon operating at a table instead
  of getting on with his consent would
  be forever looking over shoulder to
  see if someone was coming up with a
  dagger. His professional reputation is
  as dear to him as his body. Perhaps
  more so and an action for negligence
  can wound his 
  
      
  
  2.      1999
  (3) CPR 442
  
  3.      1954
  (2) Q.B. 66
  
       
  
  reputation as severally as a dagger
  can his body. You must not therefore
  find him negligent simply because
  something happened to go wrong. If for
  instance one of the risks inherent in
  operation actually takes place or some
  complication ensues which lessens or
  takes away the benefits that were
  hoped for or if in a matter of opinion
  he makes an error in judgement you
  should only find him guilty of
  negligence when he falls short of the
  standards of a skillfull medical
  man”.
  
    
  
  19. The learned counsel for the
  appellant brought to our notice a
  decision of the National Commission
  reported in Kailash Kumar Sharma v.
  Dr. Haricharan Madhu. In the said case
  the opposite party conducted surgery
  for cataract on the complainant and
  Intra Ocular Lens was fitted. The
  complainant alleged total loss of
  vision thereafter and claimed
  compensation for improper
  implantation. In the said case even
  though as per the opinion of another
  doctor loss of vision wasdue to
  improper implantation, the case was
  dismissed finding that the complainant
  had failed to discharge the burden of
  negligence on the opposite party. In
  the present case the contention is
  that there was organised and fresh
  vitreous haemorrhage and the opposite
  party failed to detech this and
  retinal detachment and conducted the
  lens implantation resulting in
  complete loss of vision. The
  independent evidence of PW2 is
  sufficient to rebut the contention of
  the complainant. The letter from Dr.
  Namperumal Swamy does not also give
  any indication that the opposite party
  was negligent in any manner either in
  examining the patient, conducting the
  surgery or giving post operative care.
  The District Forum has faulted the
  opposite party in so far as all the
  tests were not conducted by him or in
  his hospital.no one can expect such
  facilities in an opthalmic hospital.
  Minimum facilities and experienced
  doctors relating to opthalmology are
  available for treatment of the eye and
  the non-availability of other general
  infrastructural facilities or want of
  most modern sophisticated equipments
  cannot be termed as deficiency in
  service of the hospital or doctor.
  
     
  
  20. The above discussion lead
  us to the conclusion tat there is no
  evidence for negligence or deficiency
  in service against the opposite
  party/appellant. The order of the
  District Forum is liable to be set
  aside. We allow the appeal, set aside.
  We allow the appeal, set aside the
  order of the District Forum and
  dismiss the complaint. The parties are
  directed to bear their respective
  costs through out.
  
     
  
  Appeal allowed.
  
      

• Mr.
  R.L. Sethi v. Dr. Somnath Chakraborti
  
  2001(2) CPR 379
  
    
  
  STATE CONSUMER DISPUTES REDRESSAL COMMISSION, WEST BENGAL
  : CALCUTTA
  
    
  
  Consumer Protection Act, 1986 – Sections 12 and 17 – Medical
  Negligence – Cataract surgery in eye of complainant carried
  by opposite party – Complaint alleging deficiency in service
  as Cornea of operated eye got partly damaged and iris was
  completely damaged – Complainant got these repaired in
  states but vision of eye was not completely restored – Claim
  for Compensation – Defence plea that during Phaco
  emulcification complications developed and before process
  could be carried further the incision was closed – None of
  the doctors who examined complainant after incident had
  opined that complications occurred due to wrong application
  of method of surgery – No evidence that surgeon adopted a
  new method resulting in complications – Complainant could
  not be said to have established want of reasonable care and
  skill in performance of surgery – Opposite Party could not
  be held guilty of negligence.   
  (Para 5)
  
   
  
  Result : Complaint dismissed.
  
   
  
  Order
  
   
  
  S.C. Datta, President – The Complainant has filed this case
  praying for direction upon the opposite party to pay
  compensation amount of Rs. 19,10,437/- on the ground of
  deficiency in service on the part of the opposite party.
  
    
  
  2. Briefly stated the fact of the case is that the
  left eye of the Complainant was examined by Dr. V. Pahva who
  fixed 7-11-1994 as the date for Cataract Surgery. In the
  mean time the Complainant noticed advertisement of opposite
  party in newspaper regarding stitchless surgery with
  imported lens. He consulted his family physician who told
  him that Dr. Chakraborty had imported some machinery a few
  months back but he could not say anything about his
  expertise. He told him further that the said doctor was
  known to one H.N. Vora, former General Manager, UCO Bank. Mr
  Vora told him that Dr. Chakraborty is one of the best in the
  country and he should fix up the surgery without any fear.
  Accordingly he contacted the opposite party who examined his
  left eye and fixed 2-11-1994 as the date for surgery at 8.00
  a.m. The doctor took two and half hours for performing the
  surgery and he was shifted to a room with bandaged eye. On
  enquiry as to why so much time was taken for the surgery,
  the doctor replied that since he had myopia he had to
  perform deeper surgery and hence it has consumed so much
  time. The complainant felt unbearable pain and the doctor
  administered some pain killers and sleeping pills. But it
  did not improve the situation. The doctor told his friend
  Mr. A.K. Sarkar who had accompanied him on all the days of
  visit that the operation was very successful and that it
  will take another one week to recover. Since the condition
  did not improve he again consulted him. The doctor again
  asserted that the surgery had been very successful and he
  should wait for a week more. Being suspicious he consulted
  Dr. H.S. Vora who opined that the cornea as well as the Iris
  have been completely damaged. He further gave out that this
  sort of damage was not possible in a conventional method of
  surgery unless the doctor is confirmed that the cornea had
  been partly damaged and Iris had been completely damaged. He
  advised to go to Hyderabad but instead he went to Delhi and
  consulted Dr. Kishanlal, famous eye surgeon who treated him
  for glaucoma. He advised him to give little more time before
  he opts for grafting of cornea. He told him further that
  nothing can be done as far as Iris is concerned. He remained
  in physical agony for approximately six months as the
  blisters on the cornea were formed frequently. He consulted
  Dr. Irving H. Raber, a visiting surgeon from the States. He
  wrote a letter to the OP on 2-1-1995 indicating him for his
  unethical role in publishing advertisement in paper when he
  did not have the necessary expertise in phaco emulcification
  method. The complainant wrote to him again on 8-2-1995 and
  went to Bombay where he consulted Dr. Keiki Mehta for right
  eye. He told him that his left eye had been damaged by an
  unprofessional doctor by forcing the lens thereby the Iris
  and cornea both have been damaged. On hearing this he became
  nervous and went to the States again in September 95 where
  he consulted Dr. Jonathan H. Tabnamo. He advised for
  grafting and assured him that his Iris can be eighty percent
  repaired. During his stay there he was treated for glaucoma
  by Dr. Simmons who advised him to use drops throughout his
  life. He came back to India and went to Hyderabad where he
  consulted the doctors attached to L.V. Prasad Eye Institute
  but they expressed their inability to take up the surgery.
  Again he went to the States on 13-6-1996 and got the cornea
  grafted and Iris repaired on 24-6-1996. According to him
  even thereafter the vision of the eye has not restored
  completely. Consequently he has approached the Commission
  complaining of guilty of medical negligence on the part of
  the doctor. According to him there was absence of reasonable
  skill and care by attending doctors.
  
    
  
  3. The case is contested by opposite party by filing
  written version where in it has been stated that the
  complainant’s left eye was scheduled to be operated by
  phaco emulcification but after trying to dilate his pupil
  with mydriatics for more than an hour, the conventional
  approach was undertaken. As soon as the incision was given
  the petitioner’s IOP went up. The pupil was constricted
  and there was massive posterior synechia. In fact no attempt
  was made to do a Phaco emulcification. The Anaesthesist, Dr.
  Rakesh Jain was present throughout the period of surgery.
  I.V. Mannitol was given to lower IOP. A posterior
  syncheiotomy was done. As soon as capsulotomy was done the
  hard black nucleus was expelled involuntarily. This resulted
  in iridodonesis. Iris was friable and curled up like soft
  tissue paper. Residual cortical matter was cleaned up and a
  posterior chamber adatomed 15.0 dioptres IOL was inserted.
  The incision was closed with 10/0 interrupted sutures. There
  was no injury to the cornea at all. The petitioner came to
  him for follow up but when he advised him to undergo
  corrective surgery for lowering his IOP the petitioner did
  not see him. It has been denied that there was any lack of
  reasonable skill and/or care by him. It has been stated that
  before undertaking this operation the risk involved in it as
  well as the nature of complications involved in the
  petitioner’s case were clearly explained to him. The fact
  remains that in the course of operation the complication
  developed and the petitioner was advised to undergo
  corrective surgery.
  
    
  
  4. It is specifically denied that through his letter
  date 29-8-1995 has admitted his guilt. He did his best to
  contain the complications as any other prudent doctor could
  have done at the particular time. But as a gesture of good
  will and out of sympathy and human consideration for the
  suffering of a fellow human being he had written said
  letter. He emphatically denies that there has been
  negligence, failure or laches on his part. He prays that the
  claim petition be dismissed.
  
   
  
  Decision
  
   
  
  5. The complainant alleges that the opposite party is
  guilty of medical negligence in as much as he (a) failed to
  use reasonable degree of care, (b) made error of judgement
  while treating him, (c) made great mistake at the time of
  operation. It is not disputed that the complainant
  approached the opposite party for Cataract surgery of his
  left eye inprefereal to Dr. V. Pahwa. The Complainant states
  that he was attracted by an advertisement in paper and with
  the advise of his family physician, approached the opposite
  party for cataract operation. The operation, however, did
  not prove successful. According to the Complainant the loss
  of vision occurred due to careless and negligent act on the
  part of the surgeon. It is not the case of the complainant
  that the surgeon was not qualified to undertake the surgery.
  The opposite party asserts through his letter dated
  29-8-1995 (Annexure D) that he had attended Phaco Workshops
  organized by Pharmacia (Sweeden) in Bombay and has performed
  a number of surgeries using the machine. He states that the
  complications occurred during the operation. The Phaco Probe
  was not used at all. He had do revert to a larger incision
  to perform a Synechiotomy. According to him, the
  complications arose without using the Phaco Emulsifier, he
  states that there was a massive posterior synechia with
  increased Intraocular pressure and bulging of the Iris in
  the wound. He, However, through this letter expressed regret
  for the problems which the complainant had faced and asked
  for his forgiveness. He has of course stated that he will
  try to compensate him financially through his meager means
  by installments. The learned counsel appearing for the
  complainant submits that this letter of the opposite party
  clearly shows that the surgeon had admitted his guilt in the
  matter of operation and then offered to compensate the
  complainant financially. The learned counsel for the
  opposite party, however, says that this letter cannot be
  treated as an admission but it was written to show a gesture
  of goodwill and sympathy and human sentiment for the
  suffering of a fellow humanbeing. It has been alleged that
  the complainant has blown out of proportion with a malafide
  motive to extract large sum of money from him. He
  emphatically denies, that there was negligence, failure or
  laches on his part. In the complaint petition it has been
  alleged that the complication might not have occurred had
  not the surgery being done by an unprofessional raw surgeon.
  As noticed earlier, the surgeon claims himself to be an
  expert in phaco surgery, but he asserts that the phaco
  surgery was not resorted to. But the conventional method of
  surgery was adopted. The complainant got his eye examined
  both inside the country and abroad and ultimately got the
  damage repaired to some extent. The grafting of Cornea was
  done and he has put on medicine regularly and he expects
  that he may get 60% to 70 % relief. Anyway, none of the
  doctors who had examined him after the incidenthas said that
  the complications occurred due to wrong application of
  method of surgery. At least there is no evidence to show
  that the surgeon adopted a new method resulting in the
  complications. He states that his case was that the
  conventional approach was made and as soon as the incision
  was given the petitioner’s IOP went up. The pupil was
  constricted and there was massive Posterior Synechia. He has
  narrated the development elaborately in paragraph 4 of the
  written version, but there is no cogent material to show
  that the surgeon was responsible for the development of
  complications. According to the learned counsel for the
  opposite party it was merely accidental and the surgeon had
  no hand in it. He submits that it would be too much to read
  in the letter dated 29-8-1995 that there was admission on
  the part of the doctor owning responsibility in the matter.
  The surgeon expressed anxiety because of the sufferings of
  the complainant and tried to compensate him by money. The
  surgeon said that he was spending sleepless night since the
  surgery, but there is nothing to indicate that he had
  admitted his guilt in the matter. As noticed earlier, none
  of the surgeon who attended to the complainant subsequent to
  the event has said that the complications developed because
  of negligence, carelessness on the part of the opposite
  party. This being the position it is difficult to conclude
  that the complainant has succeeded in establishing want of
  reasonable care and skill in the matter of performing
  surgery. There is also no material to show that he acted
  negligently. We cannot, therefore, hold that the opposite
  party was guilty of negligence so as to entitle the
  complainant to get compensation from him.
  
    
  
  6. For the reasons aforesaid we find no merit in the
  case which we hereby dismiss on contest.
  
     
  
  Complaint dismissed.
  
     

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