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  • Nirmalendu
    Paul v. Dr. P.K. Bakshi
    I (2001) CPJ 466

      

    Consumer Protection Act, 1986 -
    Section (14) (1) (d) – Medical
    Negligence – Wrong Surgery – Non-
    removal of Cord After Operation – Eye
    operated – Thread cord not removed,
    resulted in loss of vision – Expert
    opinion to support the allegation of
    negligence not produced – Loss of
    vision attributable to wrong surgery
    not observed by any renowned
    Physicians – Complainant failed to
    prove the allegations – Not entitled
    to any relief.

      

    Held : The complainant makes opposite
    party-1 responsible for losing the
    vision of his left eye. He states that
    one thread  cord was not removed
    after the initial operation. But it
    was removed after a lapse of 2 years
    when he complained of losing regular
    shape of left eye. According to the
    complainant this non – removal
    clinical and radiological examination,
    the complainant had been found to have
    compound comminuted fracture patella.
    The complainant was advised surgery
    and it explained to him that either
    broken pieces of patella are required
    to be removed or a attempt could be
    made to repair the patella by putting
    the wire around the same . The patient
    was admitted in the hospital for
    surgery with his consent and the
    opposite party decided to repair the
    fractured pieces of patella in view of
    the younger age of the complainant,
    which was the standard treatment . The
    complainant was give I.V. fluids and
    I.V. antibiotic cover. Under spinal
    anaesthaesia given by the anaesthesist
    under tourniquet control and under all
    aseptic conditions, fracture was
    exposed. All the fragments were held
    close to each other by self retaining
    towel clips. After maintaining
    articular congruency, a
    circumferential wire was put around
    all the fractured pieces of patella
    and wire was tightened . Quardriceps
    expansions were repaired and wound was
    closed over a drain and plaster was
    applied. Thereafter , upto 18.10.1996
    the dressing of the operated wound
    through window in the plaster were
    regularly changed and when the wound
    had become healthy, the complainant
    was discharged in satisfactory
    condition from the hospital. The
    complainant was advised to visit the
    hospital for further check-up from
    time to time . Thereafter, the
    complainant had come for treatment as
    OPD patient. The OPD record was
    retained by the patient, as the
    prescription slip was handed over to
    him. As per the Photostat copy of the
    prescription slips produced by the
    complainant before the District Forum,
    plasters were changed twice on
    18.11.1996 and 18.12.1996 and
    thereafter the complainant came up for
    follow up on 2.3.1997 and 5.12.1997 .
    From the record produced on the file,
    the complainant appeared to have
    visited Dr. Salaria on 6.2.1997 . On
    5.12.1997 the complainant was advised
    wire removal, but to the best of
    knowledge of the opposite party , he
    did not get wire removed , which could
    be the cause of pain complained by the
    complainant . Complainant was given
    proper, prescribed and accepted
    treatment as required to the
    particular case in view of the younger
    age of the complainant. The
    complainant had yet to undergo further
    treatment by way of removal of wire
    and removal of lower fragment of
    patella, in case , it continued to
    cause pain and problem to the
    complainant, even after the removal of
    wire.

      

    Initially the complainant filed a case
    before the District Forum at Chinsurah
    , Hooghly but subsequently it was
    withdrawn with liberty due to sue
    fresh. Thereafter , he approached this
    commission claiming compensation of Rs.
    50,000/- together with refund of all
    expenses incurred by him towards
    charges received by the opposite
    parties. He has also claimed damages
    and compensation against the opposite
    parties.

      

    The opposite parties have filed a
    written objection denying the
    allegations contained in the complaint
    petition. It is , however admitted
    that opposite party-1 performed
    operation on the left eye of the
    complainant on 29.6.1993. 
    According to the opposite parties,
    opposite party -1 is a doctor by 
    profession since 1969 . It has been
    claimed that he is attached to various
    medical institutions and hospitals
    both in and outside country . He has
    specialization in Opthalmology.

     

    According to the opposite parties the
    complainant was first examined by
    opposite parties -1 on 18.3.1993 when
    he noticed Cataracts in both eyes and
    suspected Glaucoma changes in both
    eyes. The patient was referred to Dr.
    Saha made Glaucoma Test, i.e.
    Tonometry , Gonioscopy and Perimetery
    Test on both the eyes with early filed
    changes in the left eye. Accordingly ,
    the doctor advised the complainant for
    Cataract extraction and trab left eye.
    Accordingly , the doctor advised the
    complainant for Cataract and trab left
    eye first followed by right eye. Since
    the complainant agreed, tentative date
    for operation was fixed on 29.6/1993
    amd tje [atoemt was govem doscjarge
    certofocate pm tjat date. The other
    allegations contained in the complaint
    petition have been denied and
    disputed. It has been specifically
    denied that there is negligence on
    their part in the matter of treatment
    of the patient . Accordingly , the
    opposite parties prayed for dismissal
    of the complaint petition.

     

    At the time of hearing, the
    complainant appears in person and
    argues the case. The opposite parties
    are represented by their Counsels . Be
    that as it may, the undisputed fact is
    that the complainant having trouble in
    his left eye approached opposite
    party-1 for treatment. Opposite
    party-1 referred him to Dr. Saha for
    further investigation because he found
    Cataracts in both eyes and suspected
    Glaucoma changes in both eyes. After
    the report pf Dr. Saha was available
    the same was produced before opposite
    party -1 who advised the patient for
    Cataract extraction and trab left eye
    first pre-operative routine
    examinations which were done and the
    date of operation was fixed on and he
    was discharged on the same date.
    Thereafter, the complainant consulted
    opposite party of the Cord was an act
    of negligence on the part of opposite
    party-1 and this resulted in the loss
    of vision was attributable to the
    wrong surgery done by opposite party -
    1 . The complainant does not examine
    any expert on the subject to
    eastablish his allegation of
    negligence on the part of the doctor.
    to succeed in a case like this . We
    may observe that there is hardly any
    cogent material to substantiate the
    allegation contained in the petition
    of complaint. Under the circumstances,
    we cannot but hold that the
    complainant has failed to prove the
    allegations against the opposite
    parties. So he is not entitled to get
    any relief in this case .

     

    RESULT : Complaint dismissed.

       

    ORDER :

    Mr. Justice S.C.Dutta , President -
    The petitioner , Shri Nirmalendu Paul,
    aged 73 years approached the opposite
    parties for the first time on
    18.3.1993 for the treatment of his
    eye. Opposite party-1 , is a Surgeon
    and Specialist in Intraoculur Lens
    implant and Micro-surgery and is
    attached to opposite party-2 , an Eye
    Foundation Centre. After examination
    of complainant , opposite party-1
    observed that the poor vision in his
    advice, the petitioner went through
    some pre-operative tests. He was also
    examined by one Dr. D.K. Saha an
    associate of opposite party-1 and a
    specialist in the subject.

      

    On 29.6.1993, the complainant got
    himself admitted in the Clinic of
    opposite party-2 and Surgery was done
    in the left eye of the complainant.
    Thereafter, the complainant visited
    several times to the chamber of
    opposite party -1 for post-operative
    care and treatment. The petitioner
    claimed that the opposite arty has
    taken a total sum of Rs. 30,000/- on
    several occasions towards operation
    charges and other fees. It has been
    alleged that the opposite parties did
    not grant receipt for all the money
    they have received. According to the
    complainant because of gross
    negligence the vision of his left eye
    has been impaired. Gradually, the
    condition of his left eye deteriorated
    . The complainant consulted several
    other renowned Eye surgeons of the
    Town and was under their treatment for
    some 1.8.1995 , the complainant again
    met opposite party-1 who examined him
    and referred the complainant Dr.
    Siddhartha Bose . The said doctor
    doctor suggested re-operation of the
    left-eye . On 8.8.1995 , the
    complainant attended the Chamber of
    opposite party-1 when he was taken to
    the Operation Theatre. The petitioner
    felt that a Cord has been removed from
    his eye. According to the complainant
    the non-removal of the Cord at the
    time of the first operation was an act
    of gross negligence. His left eye had
    become smaller compared to the right
    eye . He suffered permanent disability
    in his left eye due to wrong
    operation. The complainant consulted
    Dr. V. Pahwa on 27.11.1995 and
    understood that he lost vision of the
    left eye because of wrong operation.
    The complainant wrote a letter to
    opposite party-1 making allegation
    about the damage done to his left eye
    by the operation. Subsequently , he
    served Lawyer’s notice upon opposite
    party-1 claiming compensation.party-1
    on various occasions and was also
    under his treatment. Being
    dissatisfied with the result of
    operation, the complainant consulted
    some renowned Surgeons of the Town for
    regaining vision of his left eye. But
    there was no improvement, and he lost
    vision of his left eye. The
    complainant makes opposite party-1
    responsible for losing the vision of
    his left eye. He stated that one
    thread Cord was not removed after the
    initial operation . But it was removed
    after a lapse of 2 years when he
    complained of losing regular shape of
    left eye. According to the complainant
    this non -removal of the Cord was an
    act of negligence on the part of the
    opposite party . 1 and this resulted
    in the loss of vision. As noticed ,
    earlier the complainant consulted
    various renowned Physicians of his
    town but none of them has observed
    that the loss of vision was
    attributable to the wrong surgery done
    by opposite party-1. The complainant
    does not examine any expert on the
    subject to establish his allegation of
    negligence on the part of the doctor
    Unfortunate though the incident is ,
    the complainant has failed to prove
    allegations against the opposite
    parties. So he is not entitled to get
    any relief in this case.

      

    In view of the aforesaid, we think
    that the case should fail. Ordered
    that the case be and the same is
    hereby dismissed on the contest but
    without cost.

      

    Complaint dismissed.

                  

  • 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.

        

  • Dr. I Ahmed v. Sumitra Biswas


    2001 (2) CPR 306

         

    STATE CONSUMER DISPUTES

    REDRESSAL COMMISSION, WEST BENGAL; CALCUTTA

        

    Consumer Protection Act, 1986 – Sections 2 (1) (o) r/w 2 (1) (g) and 15 – Complaint of deficiency in medical service by eye surgeon in performing cataract operation allowed by District Forum on ground that operation was done in hot haste without preoperative investigations – Appeal against – Case of wave complications – Defence of error of judgment or choice of treatment denied to appellant – Whether justified ? (No) – Appeal allowed.

       

    Held: We notice that in this case the Appellant had stopped the operation, closed the eye of the complainant by Pad and referred her to SSKM Hospital for better treatment. The complainant was admitted in the Nursing Home at 5-30 p.m. on 21-8-1998 and he was discharged on 23-8-1998 at about 10.00 a.m. The Forum noticed that the error of the judgment or the choice of the treatment is a good defence which can under the circumstances in a particular case be set up by an answering Doctor but the Forum observed that in this particular case, the Doctor was responsible for a misadventure in deciding to operate the eye of the complainant on the every same day when she was first examined. It may be observed that the Forum over looked the fact that before fixing a date for operation. The Complainant was examined thrice and several routine pre-operative investigations were suggested. Ld. Counsel for the Appellant has drawn our attention to the notings on the left hand side of the prescription
    (Annexure`A’) to urge that the intra-ocular pressure of the patient was recorded on 19-5-1993 when she was examined for the first time. He submits that the notings therein indicate that it was normal. It appears that the Forum noticed the observation of the several authorities in this regard and there is nothing to show that the
    O.P. was guilty of negligence. He did not, in our view, fall short of this standard of a reasonably skilled man when this type of incident may occur in one out of 1,000 cases. Anyway, having regard to the facts and circumstances of the case and the authorities on the subject we find that the Forum was not justified n finding the present Appellant guilty of negligence in the matter of performing operation. The Forum ought to have dismissed the case. For the reasons aforesaid we find substance in the Appeal which is hereby allowed and the judgment of the Forum is set-aside and the complaint petition be dismissed on contest but without any cost. ( Para 5 )

         

    Result : Appeal allowed.

         

    Counsel for the parties:

       

    For the Petitioner / Appellant : Mr. Prabir Basu, Mr. D.B.Chowdhury and Mr. A.
    Dutta, Advocates.

       

    For the Respondent / O. P. S. : Mr.T. Banerjee, Mr. S. K. Dutta and
    Mr.A. Mitra, Advocates.

         

    IMPORTANT POINT

       

    The Forum ought to have dismissed the case of medical negligence when this type of incident may occur in one out of 1000 cases and the surgeon did not fall short of a reasonably skilled man. 

        

    ORDER

        

    S. C. Datta, President – This is an appeal by the O.P. against the order of the Forum dated 24-4-2000 directing payment of compensation of Rs.1,50,000/- to the Complainant together with interest @ 12% p.a.

      

    2. Briefly stated the fact of the case is that the petitioner a young unmarried lady approached the
    O.P. an Eye Surgeon with complication in her left eye. The Petitioner was referred to the said Eye Surgeon by one Dr. Ajit Sarkar of
    Nabadwip. On examination O.P. fixed 21-8-1998 as the date for operation of her left eye and referred her for admission in Central Nursing Home,
    Krishnanagar. On admission, her left eye was operated upon on the said date i.e. on 21-8-1998 at about 9.00 p.m. Following the Surgical Operation, the left eye of the complainant got damaged and there was profuse bleeding. On 23-8-1998 at about 10.00 a.m. the Complainant was discharged from the said Nursing Home and she took admission in
    S.S.K.M. Hospital and was detained there for 20 days for treatment. Subsequently, she was also treated at
    B.R. Singh Hospital. She was also received treatment from Sankar
    Netralaya, Madras, after being discharged from
    B.R. Singh Hospital. It has been alleged that because of negligence and carelessness on the part of the
    O.P. her left eye has been totally damaged and she lost her vision or the left eye for ever. Accordingly, she approached the Forum claiming compensation..

       

    3. The case was contested by the O.P. by filing a written version wherein the allegations of the complainant were denied and disputed. According to the
    O.P. the operation was done after routine pre-operative checks and test. There was rapid rise of intra-ocular pressure and lens was being pushed up. Several medicines were administered to reduce the said pressure but unfortunately the lens nucleus popped out and vitreous followed and it was a case of impending expulsive
    haemorrhage. According to the O.P.every precaution was taken and post-operative care was taken to control the bleeding. The bleeding was controlled on 23-8-1998 when she was advised to consult Vitreous Retinal Expertise and was referred to the Eye Department of
    S.S.K.M. Hospital. According to him, the incident which occurred is one of the most frightening and serious complications of Cataract Surgery and it is very rare and it happens only on few occasions. 

        

    4. On consideration of oral and documentary evidence the Forum found that negligence on the part of the Eye Surgeon was proved beyond all reasonable doubts. Accordingly, the Forum awarded compensation to the tune of Rs.1,50,000/- upon computation of the income of the Complainant of the mental agony and financial stringency of the Complainant.



    5. Feeling aggrieved thereby the Eye Surgeon who was the
    O.P. before the Forum has appealed. According to the Appellant, the Forum was wrong in observing that the Operation was done in hot hast and mechanically without application of medical mind and without advising the patient to get all preliminary pre-operative investigations done. Ld. Counsel appearing for the Appellant submits that the Forum failed to take notice of the fact that all pre-operative investigation were done and the operation was not done in hot haste. In this connection he has drawn our attention to the prescriptions given by the Eye Surgeon. It appears there from (Annexure `A’) that the complainant was first examined by the Eye Surgeon on 19-5-1998. She was advised to undergo some routine pre-operative investigations. Again on 7-5-1998 the complainant was examined by the Surgeon. On 9-8-1998 the Surgeon upon examination of the patient advised admission in the Nursing Home and fixed 21-8-1998 as the date for operation. The notings in the prescription (Annexure `A’) clearly show that the Doctor prescribed pre-operative tests and fixed the date for operation after those tests were done. There is no dispute that the operation was done on 21-8-1998. According to the Surgeon it is a case of impending expulsive harmorrhage and the only treatment is vitreous retinal surgery. The Surgeon has referred her to SSKM Hospital for better management and treatment. On 23-8-1998 she was admitted there and was detained therefore 20 days for treatment. Subsequently, she got treatment at B.R.Singh Hospital and lastly at Sankar Netralaya but none could cure the ailment nor restore her vision of the left eye. There is no opinion of the attending Surgeons attached to any of the institutions referred to above regarding the negligence of the present
    O.P. in the matter of conducting surgery. The Ld. Counsel for the Appellant submits that the Forum was not justified in coming to the conclusion that none of the Doctors would offer their opinion in writing against the answering Doctor of the present case. He submits that this assumption of the Forum is totally unfortunate and unjustified. The complainant has examined one Dr. Bimal Kr.Hore (PW-5) who is an expert in the field. He has opined that there is a chance of expulsive haemorrhage and it may occur at any time during Surgery and that the only treatment is vitreous retinal surgery. He has further opined that the Doctor should have closed the eye and referred the patient to any other hospital for better treatment. We notice that in this case the Appellant has stopped the operation, closed the eye of the complainant by Pad and referred her to SSKM Hospital for better treatment. The complainant was admitted in the Nursing Home at 5.30 p.m. on 21-8-1998 and he was discharged on 23-8-1998 at about 10.00 a.m. The Forum noticed that the error of judgment or the choice of treatment is a good defence which can under the circumstances in a particular case be set up by an answering Doctor but the Forum observed that in this particular case, the Doctor was responsible for a
    mis-adventure in deciding to operate the eye of the complainant on the very same day when she was first examined. It may be observed that the Forum our looked the fact that before fixing a date for operation the complainant was examined thrice and several routine pre-operative investigations were suggested. Ld. Counsel for the Appellant has drawn our attention to the notings on the left hand side of the prescription (Annexure `A’) to urge that the intra-ocular pressure of the patient was recorded on 19-5-1993 when she was examined for the first time. He submits that the notings therein indicate that it was normal. It appears that the Forum noticed the observation of the several authorities in this regard and there is nothing to show that the
    O.P. was guilty of negligence. He did not, in our view, fall short of this standard of a reasonably skilled man when this type of incident may occur in one out of 1,000 cases. Anyway, having regard to the facts and circumstances of the case and the authorities on the subject we find that the Forum was not justified in finding the present Appellant guilty of negligence in the matter of performing operation. The Forum ought to have dismissed the case. For the reasons aforesaid we find substance in the Appeal which is hereby allowed and the judgement of the Forum is set-aside and the complaint petition be dismissed on contest but without any cost. Appeal allowed.

        

  • Mr.
    Yoginder Beri v. Grover Eye &
    E.N.T. Hospital & Ors.


    2001 (2) CPR 358

        

    For more details    
    click
    here

        



  • T.
    N. GHOSH v.DR. V. PAHWAL


    II (2001) CPJ 473

     

    WEST
    BENGAL STATE CONSUMER


    DISPUTES REDRESSAL COMMISSION,


    CALCUTTA

      

    Consumer Protection Act, 1986 – Section 15 -
    Appeal – Medical Negligence – Casual and
    careless examination by opposite party resulted
    in loss of vision – Complainant failed to
    prove the allegations of negligence on part of
    opposite party, not entitled to any relief.

     

    Result : Appeal dismissed.

     

    ORDER

     

    Mr. Justice S.C. Datta, President – This appeal is
    directed against order dated 6.8.1999 whereby
    the complaint was dismissed on contest. The
    Forum observed that the complainant has failed
    to establish any case of negligence on the part
    of the present respondent.

     

    Being aggrieved by the decision of the Forum the
    complainant has preferred this appeal on the
    ground that there has been gross miscarriage of
    justice. According to the appellant the
    negligence of the respondent is writ large on
    the face of the prescriptions of the respondent
    given by Dr. Pahwa himself. 
    His allegation is that Dr. Pahwa failed
    to diagnose the ailment of both of his eyes by
    all necessary examinations either by himself or
    by his assistants. 
    He specifically alleges that Dr. Pahwa
    failed to detect the glaucoma in his eyes though
    it had started developing in 1987. 
    Admittedly, the complainant was under the
    treatment of the opposite party for nearly 3
    years from 1991 to 1994. His first visit to Dr.
    Pahwa was on 18.6.1991 when the doctor detected
    some black spots in his eyes. The doctor could
    not detect glaucoma at that time nor could it be
    detected on subsequent visits to the doctor. On
    the advice of the doctor he visited him after 6
    to 8 months for review. Even during such visits glaucoma could
    not be detected. 
    All the time the doctor told him that he
    was afflicted with cataract and since the
    cataract did not mature the doctor did not
    advise for operation. The grievance of the
    complainant is mainly that the doctor being a
    busy practitioner could not devote sufficient
    time and give due care to examine him properly
    resulting in wrong diagnosis. His vision having
    visibly deteriorated, he approached Dr. Bakshi
    for examination of his eyes and treatment. Dr. Bakshi examined him on 29.6. 1994. At
    that time too Dr. Bakshi could not detect
    glaucoma in the yes of the complainant. Later on
    the glaucoma was detected and by this time his
    vision was greatly impaired. The complainant
    states that all the required tests could have
    been done on the first day of his visit to Dr.
    Pahwa and had these been done, the glaucoma
    would have been detected. The complainant was losing his eye sight
    very fast.
    Ultimately, his vision of right eye was totally
    impaired and he has become blind of one eye and
    for this unfortunate development he lays blame
    upon Dr. Pahwa. 
    His grievance is that the doctor made
    some cryptic notes in the prescription and
    released him after 4 or 5 minutes of casual
    examination. He alleges that proper care and
    attention was not given to him by the opposite
    party. It
    is not disputed that the eyes of the complainant
    were examined at intervals of 6 to 8 months and
    sometimes one year also and on each occasion the
    doctor advised him to come for review. According
    to the complainant this casual and careless
    examination by the opposite party resulted in
    the loss of vision. We noticed earlier that when
    he was examined for the first time by Dr. Bakshi,
    the latter did not notice glaucome on 
    his eyes. Later the glaucome was
    detected. In the meantime damage was done to his
    right eye and his vision was totally impaired.
    It appears that the Forum discussed the
    materials available with the record threadbare
    and came to the clear conclusion that the
    complainant has signally failed to prove the
    allegations of negligence on the part of the
    opposite party. We have considered every aspect
    of the case and materials on records and we
    cannot persade ourselves to hold otherwise. In
    our opinion, the case has been correctly decided
    and no interference is required. In that view of
    the matter, the appeal fails and is dismissed on
    contest.

     

    Appeal dismissed.

            

  • 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.

        

  • Jagdeep
    Mohanlal Kakadia v Ophthalmics &
    Drugs India & Ors

    1997(3)
    CPR (Guj SCDRC)

      

    the complainant an ophthalmic surgeon
    while performing cataract surgery used
    a drug Irrisol which is a balanced
    salt solution to prevent the cornea
    form becoming dry , during eye surgery
    . it was alleged that 4 of his
    patients became blind because of
    impurities such as detergents
    contained in Irrisol . This adversely
    affected his professional practice.
    According to the complainant about 10
    persons in Bhavnagar had lost vision
    on account of Irrisol . About 800-1000
    patients had lost vision in India on
    account of use of Irrisol of batch 
    Nos 50, 51, 52

      

    After reading its reasons for
    condoning the delay in filing
    complaint the state commission held
    that the drug Irrisol was purchased
    for using in course of cataract
    operations and not for buying and
    selling nor for financial business and
    hence it cannot be said that the drug
    was purchased for commercial purposes.
    the state commission also held that
    the pharmaceutical company not only
    does business but also renders service
    to the general public and to the
    medical profession when it
    manufactures and sells drugs.
    Therefore manufacture and sale of
    defective impure or spurious drugs
    would amount to deficiency in service.
    So far as the deficiency in service is
    concerned ,purpose of use if
    commercial, would not take the
    complainant out of the definition of
    the consumer.

      

    Finally the State commission held that
    the drug Irrisol was defective on the
    basis of a report of an independent
    laboratory of USA and other material
    records. OIt also held the opponent No
    1 guilty of unfair trade practice as
    defined under clause(r) of subsection
    1 of section 2 of the CP act.

     

    Lump sum of Rs 15 Lakhs was
    awarded to the complainant to be paid
    by Opponent No 1 alone as once the
    principal is known it would not be
    proper to hold the agent liable.

      

    As the complainant expressed his
    desire to use the amount for all those
    affected by the drug, the state
    commission ordered handing over the
    amount  to a body or trust for
    proper use as may be decided by the
    commission.

       

  • Miss
    Gurpreet Kaur (Minor) v. Dr. R.K.
    Bhutani

    2.1993
    (3) CPJ 355: 1993 (3) CPR 409 (NCDRC)

      

    The case put forward by mother of the
    complainant was that she took her
    daughter Miss. Gurpreet Kaur (Minor)
    to the clinic of the opposite party
    for treatment of some eye disease for
    the first time on 8.4.1989. Without
    performing the necessary and
    preliminary test and without due and
    proper caution the doctor operated on
    the left eye of the child, and without
    proper examination, discharged the
    patient on the same day. The patient
    was subsequently taken to his clinic
    for check-up every morning and evening
    between 10.4.1989 to 13.4.1989. On
    14.4.1989 she was asked to take her to
    another doctor who demanded RS.
    10000/- for another operation on the
    eye and also stated that he would not
    take responsibility for the complete
    cure of the eye. Thereafter the
    complainant again called on Dr.
    Bhutani who informed her that he could
    do nothing further in the matter.
    Disgusted, she took the child to St.
    Stephen’s Hospital where the doctors
    told her that in case immediate
    removal of the left eye was not done
    the child could die. Accordingly, the
    child’s left eye was removed.
    Keeping in view the permanent loss of
    the left eye and the physical, mental
    and social repercussions it had on her
    future, the complainant prayed for
    compensation to the tune of Rs.5 lacs.
    In his written reply, Dr. R.K. Bhutani
    stated that:

      

    • Child
      was initially brought to him on
      6.3.1989 and not on 8.4.1989 as
      alleged in the complaint.


    • On
      6.3.1989 itself he explained to
      the mother of the patient, the
      serious nature of the problem and
      the left eye was already damaged
      extremely due to a previous
      surgery. It was only then that it
      was disclosed to her that left eye
      of the child had earlier been
      operated upon at the Dr. Rajendra
      Prasad Centre for Ophthalmic
      Sciences, AIIMS, New Delhi when
      the child was only ten months old.


    • He
      got all necessary tests of blood,
      urine etc. conducted before
      operating upon the child.


    • After
      surgery, child was kept under
      observation for twelve hours and
      discharged only after complete and
      thorough examinations.


    • Subsequently,
      follow-up treatment was given from
      10.4.89 onwards.


    • Held:The
      appeal was dismissed with costs
      fixed at Rs.7500/- on the
      following grounds:


    • The
      complainant had suppressed in her
      complaint the crucial fact that
      the child had been operated upon
      when she was only 10 months old.
      This was verified through relevant
      records and examination of the
      then concerned specialist.


    • Except
      for filing her own affidavit the
      complainant has not adduced any
      expert evidence on her behalf.


    Reports
    of pre-operative tests falsify her
    allegations that they were not
    performed.

      

  • Rohini
    Devi v. Dr. H.S. Chudawat &
    Another

    1995(1)
    CPJ 334 1994(1) CPR 621 (Raj.SCDRC)

      

    It was claimed that the complainant
    had cataract in her right eye for
    which she consulted Dr. Chudawat who
    operated her cataract and implanted an
    intra-ocular lens on 24.10.94.
    However, the vision did not return
    even after 6 months. Dr. Chudawat
    advised for getting a more costly
    intra-ocular implant guaranteeing that
    her vision would become normal.
    Re-implant was done and separate fees
    recovered for the same. However,
    vision still did not improve.
    Therefore on advice of other doctors
    her eye was again operated on 7.1.1992
    in another hospital and the lens was
    removed,she had lost sight of her
    right eye. Dr. Chudawat denied that a
    guarantee was given regarding return
    of vision. The possible pros and cons
    of the operation were explained to
    her. As the implant did not suit the
    complainant another lens was implanted
    by another operation. Thereafter the
    complainant did not come for follow-up
    treatment.

      

    The State Commission held that:

      

    • the
      cataract was operated on
      24.10.1990


    • the
      complainant did not complain of
      any pain or trouble for 5 months;


    • the
      complainant agreed to undergo the
      second operation from the same
      doctor had there been any
      negligence during the first
      operation the patient would not
      have got the second operation done
      from the same doctor;


    • From
      the procedure followed by the
      doctor, it cannot be inferred that
      there was any deficiency of care
      or skill on part of Dr. Chudawat;


    • From
      the available records it seems
      that the complainant herself was
      negligent in taking follow-up
      treatment.

    Just
    because she had lost vision of her
    eye, it would not mean that it was due
    to the negligence of the doctor.  
    Hence, the complaint was dismissed.

      

  • Basant
    Mahadev Samvatsar v. Dr. Sudhir
    Mahashabde & ors.

    State
    Consumer Disputes Redressal Commission
    Madhya Pradesh : Bhopal

      

    Consumer Protection Act, 1986 -
    Sections 12 and 17 – Medical
    negligence – Complainant was operated
    for removal of cataract – Loss of
    vision of for the alleged negligence
    on part of doctors – No expert
    evidence examined by complainant to
    establish any kind of negligence or
    deficiency on part of opp. parties -
    Both surgeons, opp. party, by their
    affidavits, proved what known
    complications of nucleous fall or
    retinal detachment happened – Simply
    because mishap of nucleous fall or
    retinal detachment happened, opp.
    parties could not be held negligent or
    deficient in service – Complaint was
    liable to be dismissed – Complaint
    dismissed.

       

  • Maya
    Bagchi v. Dr. Samir Sen Gupta &
    Anr.

    1996(2)
    CPR 180 WB SCDRC

      

    the complainant was operated for
    glaucoma right eye. It was alleged
    that the operation was performed
    negligently due to which she had to
    take treatment elsewhere for relief.

      

    The State Commission dismissed the
    complaint on the basis of (i) the
    report of L.V. Prasad Eye Institute,
    Hyderabad, which was filed by the
    petitioner (complainant) in support of
    her allegations, on the contrary,
    supported the opposite party No.1 and
    (ii) the fact that the complainant
    rather did not take due care to have
    the follow up treatment through
    opposite party No.1 (contributory
    negligence).

       

  • Asha
    Rani v. Dr. Rohit Grover & Ors.

    1996(3)
    CPJ 259 (Chandigarh SCDRC)

     

    the complainant was operated for
    malignant glaucoma, but her eye-sight
    did not improve. It was alleged this
    occurred due to the negligent manner
    in which the operation was performed
    and lack of post-operative care.

      

    After considering all material on
    record the State Commission held that
    the complainant failed to discharge
    the heavy onus of establishing
    negligence or deficiency and failed to
    examine any other specialist who
    subsequently treated her. The fact
    that the doctor refunded the expenses
    by means of a cheque, is a
    circumstance which itself does not go
    against him. Complaint dismissed.

      

  • Ramesh
    Bhai P. Prajapati & Anr. v. Dr.P.N.
    Nagpal

    1997(1)
    CPJ 471(Gujarat SCDRC)

      

    the complainant’s son aged 6 years was
    operated for post traumatic cataract
    with secondary infection but he lost
    his vision in that eye. The complaint
    came to be dismissed as no convincing
    material evidence was placed before
    the State Commission.

      

  • Kailash
    Kumar Sharma v. Dr. Hari Chavan Mathur

    1997(3)
    CPJ 41: 1997 (2) CPR 126 (NCDRC)

      

    the complainant was operated upon for
    cataract and intra-ocular lens (IOL)
    implant, but there was no restoration
    of vision in the eye. The Opposite
    Party submitted that:

     

    –  the complainant was apprised
    of all surgical options and advantages
    and risks therein, on which he
    deliberated for over a fortnight and
    signed a consent form to have IOL
    implanted and accepted responsibility
    for all the benefits and ill-effects;

     

    –  any allergic that may develop
    following reaction to such imbalance
    can be countered by drugs, and the
    patient was already responding to such
    a cause, he voluntarily discontinued
    treatment.

     

    The National Commission concurred with
    the conclusion arrived at by the State
    Commission that the complainant had
    failed to discharge the burden of
    proving negligence of the Opposite
    Party and dismissed the complaint.

        

  • Bhupendra
    Nath Das v. Maharaj Ram Krishna
    Mission Seva Pratisthan & Ors.

    1998(1)
    CPJ 377:1998 (2) CPJ 390(WB SCDRC)

      

    the complainant was operated for
    cataract. Subsequently, he developed
    complications and his eye ball had to
    be removed at another medical centre.

     

    The State Commission dismissed the
    case on grounds of :

      

    · the decision of the doctor to
    operator for cataract had not been
    challenged;

     

    · the operation was done with
    reasonable care;

     

    · any after-effect subsequently
    noticed could be either due to lack of
    proper care or due to other reasons;

     

    · the allegation that wrong medicines
    were prescribed has not been testified
    by expert; and

     

    · production of copies from medical
    books is not enough to prove an
    allegation of negligence in such a
    case.

      

  • Thomarina
    Marcel D’Cruz v. Management of
    St.Joseph’s Boys Higher Secondary
    School & Ors

    1998(1)
    CPJ 340 (TNSCDRC)

     

    the complainant (represented by his
    father) was a boarder and injured his
    right eye due to a fire accident and
    was taken to a hospital where the
    whole right eye was removed. It was
    alleged that the parents were not
    informed and the operation was done
    negligently in a hospital which did
    not have adequate facilities.

      

    The State Commission held that as the
    doctor told the School authorities
    that immediately an operation had to
    be done and thereafter per force they
    have to give their consent for the
    same, as parents were staying 140 kms.
    away and waiting for their arrival
    would had disastrous results. Hence,
    there was no deficiency in service on
    part of the school management. The
    doctor who operated stated if the
    operation had not been done it could
    have been disastrous and he would have
    been charged with omission, and the
    hospital was adequately equipped for
    the operation. Accordingly the
    complaint was dismissed.

      

  • Jyoti
    Vivek & Ors. v. Pradeep & Ors.

    1998(1)
    CPJ 191 1997 (3) CPR 220 (Kerala SCDRC)

      

    the complainant, a welder by
    profession was hit in his left eye by
    small iron particle, and went to the
    1st opposite party for treatment, but
    as there was no relief he went to
    other doctors and finally to the
    opposite party No.5, who operated
    after confirming presence of a foreign
    body on ultra sound. He ultimately
    lost his vision.

      

    The District Forum had held the
    opposite parties No.1 and 2 negligent
    for not advising x-ray and opposite
    parties No. 2 and 4 for not doing an
    ultrasound scan.

      

    On appeal, the State Commission held
    that the complainant presented only
    after 3 days of injury to opposite
    No.1 and even then he did not disclose
    about the injury. He was advised to
    come for a check-up but did not
    turn-up and kept changing doctors.

      

    There was no clear evidence that the
    treatment and procedures adopted by
    the opposite parties were not proper
    or they were deficient in any respect.
    An expert witness who was examined was
    also not able to bring out anything in
    his evidence which would establish
    that there was any deficiency on the
    part of the opposite parties. Hence,
    the order passed by the District Forum
    was set aside and the complaint was
    dismissed.

      

  • Air
    Commodore Satya Naryana v. L.V. Prasad
    Eye Institute

    1998(1)
    CPJ 110 (AP SCDRC)

      

    the complainant, aged about 75 years
    was operated for cataract right eye
    and Intra Ocular Lens (I.O.L.)
    implanted. He developed severe
    infection and lost vision of that eye.
    It was alleged this occurred due to
    gross negligence and improper
    application of skills and lack of
    aseptic conditions.

      

    The State Commission held that the
    opposite parties were fully qualified
    to undertake this operation and were
    having latest equipments, and there is
    no evidence on record that the
    premises were not in aseptic
    conditions. There was a always a risk
    of infection in case of aged and
    diabetic patients. The commission
    refused to apply the principle of
    resipsaloquitur on the ground that in
    case of medical treatment inspite of
    best care a patient may die. But that
    does not by itself establish
    negligence. Complaint dismissed.

      

  • Kashi
    Ram Bhim Rao Kamble v. Dr. Udaya A.
    Patil & Anr

    1998
    (3) CPJ 614 (Mah SCDRC)

       

    More
    Details      
    Click
    Here

           

  • Bhaghat
    Saran Agarwala & Ors. v. State of
    Orissa & Ors.

    1993
    (2) CPJ 1066 (Ori SCDRC)

      

    a school boy was hit by a pellet from
    a short-gun in his right eye, leading
    to a penetrating injury. On being
    operated by an ophthalmologist it was
    found that since attempts to remove
    the pellet had failed and further
    attempts would instead cause greater
    harm to the injured eye, the wound was
    closed with sutures. The opposite
    party-doctor’s version that there was
    no negligence was supported by
    standard text books and expert
    evidence. No negligence inferred.

        

  • Mrs.
    Geeta Kumari v. Dr Mrs Anita Ranjan

    1995
    (2) CPR 393 (Kerala SCDRC).

      

    The complainant went to the opposite
    party for fever and redness of the
    eyes. Medicines and injections were
    given, but it was alleged that she
    developed complications due to wrong
    treatment and drug reaction, and
    ultimately lost vision of her eyes, on
    account of development of Steven
    Johnson Syndrome (SJS).

       

    The State Commission held that there
    was no evidence to indicate that the
    patient developed SJS as a result of
    the medicines and the injections
    prescribed. The burden is on the
    complainant to establish that it was
    on account of the negligence or
    deficiency in service on the part of
    the doctor that the complainant had
    failed to establish this. The
    complainant also failed to examine any
    of the doctors who subsequently
    treated the patient. Complaint
    dismissed.

          

  • YOGINDER
    BERI  v. GROVER EYE AND E.N.T
    HOSPITAL

    III (2001) CPJ 106 UNION TERRITORY
    CONSUMER DISPUTES REDRESSAL
    COMMISSION, CHANDIGARH

      

    Consumer Protection Act, 1986 -
    Section 2(1)(g) – Medical Negligence -
    Deficiency in Service – Vision lost
    after cataract operation -
    Compensation claimed – Complainant
    abandoned the prescribed treatment
    without opposite party’s approval -
    Consulted several eye specialists,
    underwent laser treatment and other
    tests which should not have been
    undertaken – Complainant himself
    responsible to the condition of eye -
    Opposite party not in any way
    medically negligent in providing the
    treatment – No deficiency in service
    on behalf of the opposite party proved
    – Complaint dismissed.

      

    Held : In our considered view, the
    case law cited by the learned Counsel
    for the respondent is quite applicable
    to the facts of the instant case.
    Resultantly, the complainant had
    failed to prove any deficiency in
    service on the part of opposite party
    No. 2 Dr. Rohit Grover of opposite
    party No. 1- Grover Eye & ENT
    Hospital and has further failed to
    show that Dr. Rohit Grover was in any
    way medically negligent in providing
    the treatment prescribed by Dr. Grover
    and consulted several other eye
    specialists at Chandigarh and also at
    A.I.I.M.S. at New Delhi where he
    underwent laser treatment and other
    tests which according to Dr. Rohit
    Grover should not have undertaken so
    soon after the operation for the
    cataract in the right eye. In other
    words, the complainant himself is
    responsible to the condition of the
    eye, in which he is placed after the
    operation. Since the complaint fails
    against the opposite party Nos. 1 and
    2, the question of any liability on
    the party of opposite party No. 3 -
    namely, New India Assurance deserves
    to be dismissed against the opposite
    parties. The opposite party No 3 is
    the Insurance Company which has
    insured the opposite party Nos. 1
    & 2    (Para 28)

      

    Result : Complaint dismissed.

      

    ORDER

      

    Mr. Justice K.K.Srivastava, President
    – The complainant Mr. Yoginder Beri, a
    resident of House No. 5155/3, Modern
    Housing Complex, Manimajra, Chandigarh
    approached opposite party No. 2 Dr.
    Rohit Grover of Grover Eye & ENT Hospital,
    Kothi No. 140, Sector 35-A, Chandigarh
    (opposite party No 1) for treatment of
    problem in his eyes. The opposite
    party No. 2 Dr. Rohit Grover after
    thoroughly checking the eyes of the
    complainant Mr. Yoginder Beri apprised
    him that he was having a Cataract in
    both his eyes and advised him for
    operation on urgent basis. The
    operation was to do done for PHACO
    EMULSIFICATION i.e., by implanting
    Intra Ocular lens ( for short to be
    referred as I.O.L.). The complainant
    had consulted Dr. Rohit Grover on 2nd
    May, 1997 for finalising the date of
    operation which was fixed for
    27.5.1997 at 6:30 a.m. It has been
    alleged in the complainant that PHACO
    type of mode of Cataract operation was
    the latest of all the available modes
    and that his vision will be restored
    to the extent possible with the aid of
    spectacles. A sum of Rs. 12,500/- was
    charged by the opposite party No.2 DR
    Rohit Grover towards the operation
    charges which also included the costs
    of lens. The payment was made by the
    complainant to Dr. Rohit Grover vide
    Cheque No. 113597 dated 27.5.1997
    drawn at State Bank of India. As
    Scheduled, the operation Mr. Yoginder
    Beri on 27.5.1997 at 6:30 a.m. for
    removal of Cataract. Dr. Rohit Grover
    opposite party No. 2 assured the
    complainant once again after the
    operation that the operation eye
    concerned was successful. However, the
    Complainant was not feeling
    comfortable after his right eye opened
    to light and problem of poor vision
    persisted. The complainant informed
    Dr. Rohit Grover opposite party No. 2
    about his aforesaid problem. The
    opposite party No. 2 Dr. Rohit Grover
    advised rest to the complainant from
    time to time and continued to assure
    improvement in the eye with the
    passage of time.

       

    2.  Mr. Yoginder Beri, the
    complainants was checked by Dr. Rohit
    Grover of respondent No. 1 – Hospital
    on 29.5.1997, 9.6.1997 and 27.6.1997.
    On 9.6.1977, opposite party No. 2 Dr.
    Rohit Grover advised the complainant
    to use spectacles with the following
    number :

      

            
    Right eye                                   
    Left eye



            
    Dist 4.50/1.00/300                     
    1.00



            
    Near 2.50/1.00/30                   
    +2.50

       

    Even after using the spectacles of the
    power mentioned above, the complainant
    Mr. Yoginder beri did not feel
    comfortable as he was seeing double
    images of the object. This problem of
    double image in the vision of the left
    eye was told to the opposite party No.
    2 Dr. Rohit Grover during the check up
    on 27.6.1997. Dr. Rohit Grover was
    clearly told that the complainant was
    having the problem of diabolical
    images and lack of clarity in the near
    distance. During the Discussion
    regarding the non-improvement in the
    vision without the spectacles as
    claimed by opposite party No. 2 Dr.
    Rohit Grover and the reasons for using
    a lens of 12-D (Diopter) against his
    nothing in the dairy as 8, the
    opposite party No. 2 Dr. Rohit Grover
    Candidly admitted two points which
    were as under :

      

            
    (a) that as per his experience he
    normally makes the adjustment by
    atleast one or two powers of lens and
    he also subscribed to his point by
    showing the records maintained in a
    diary. In most of the records as shown
    by the doctor, the complainant
    observed that in all the cases
    respondent No. 2 has reduced the power
    of the lens by one or two points i.e.,
    if the power as per the scanning
    machine was 17 he used a lens of 15.

      

            
    (b) Respodent No. 2 also admitted that
    the lens of 5 diopter is not normally
    available but can be procured on
    orders from suppliers at Delhi or from
    the manufacturing companies.

     

    Dr. Rohit Grover changed the number of
    the spectacles but the problem in the
    eyes still continue. The complainant
    made further queries fromt he opposite
    party No 2. Dr. Rohit Grover whether
    any re-operation is possible t rectify
    this disorder by change of lens
    implanted by him but Dr. Rohit Grover
    showed his ignorance and recommended
    that names of doctors for consultation
    who according to him were authorities
    in said kind of surgery in India :

        

    1. Dr. (Prof.) V.K.Dada.                             
    Head of Deptt., AIIMS, H.P Hospital,
    New Delhi



    2. Dr. Kumarand Dr. Keiky Mehta.            
    Colaba Hospital, Bombay.

       

    It is alleged that the complainant Mr.
    Yoginder Beri went to New Delhi and
    sought appointment with Dr. V.K. Dada
    at his residence as he was on leave
    from hospital. The complainant visited
    the AIIMS Hospital on 7.7.1997 for
    consultation and after checkup Dr.
    Dada recommended yag laser and other
    tests and asked him to visit again on
    10.7.1997. On 10.7.1997, Dr. Dada
    verbally advised the complainant that
    the risk of re-operation should not be
    taken as the chances of its success
    are almost nil and advised the
    complainant Mr. Beri that he should
    remained dependent on the left eye and
    be cautious in the event of its
    operation if required at later stage.

       

    3. It has been, contended by the
    complainant that due to poor vision,
    he had to seek his premature
    retirement from the job with the State
    Bank of India otherwise in the normal
    course, the complainant was to retire
    on attaining the superannuation age of
    60 years on 30.4.2001. as his date of
    birth was recorded as 15.4.1941. The
    complainant, however, sought his
    premature retirement as aforesaid on
    2.6.1998. It is the allegation of the
    complainant that he suffered permanent
    disability in his vision resulting in
    physical and mental harassment due to
    the deficiency in service on the part
    of the opposite parties. Mr. Yoginder
    Beri, the complainant, claimed damages
    to the extent of Rs. 7 lacs with the
    following break up :

        









    Sr.
    No

    Details

     
    Amount

    1

    Paid
    to opposite party No.1 towards
    the operation

     
    Rs. 12,500.00

    2

    Paid
    as consultation charges 

     
    Rs. 75.00

    3

    Loss
    of salary of two months

     
    Rs. 37,425.00

    4

    Compensation
    for permanent disability,
    physical torture and mental
    agony to the complainant and
    his family members

     
    Rs. 6,50,000.00

      

    Total 

     
    Rs. 7,00,000.00


    4. 
    The complainant, however averred that
    he received a sum of Rs. 10,000/- from
    his employer i.e., the State Bank of
    India being the medical reimbursement
    which is admissible in the service of
    the complainant. The complainant has
    assured in para 14 of his complaint to
    return the said amount of Rs. 10,000/-
    to his employer, if the same was
    ordered parties.

       

    5.  The complainant got a legal
    notice served on 5.4.1998 on opposite
    party No. 1 and 2 claiming the
    compensation of Rs. 7,00,000/-. The
    said legal notice was replied by both
    the opposite parties vide reply dated
    31.5.1998 and denied their liability
    to pay any amount co compensation.
    With these allegations, this complaint
    was filed before this Commission
    through Counsel Mr. Ashok Gupta,
    Advocate on 31.3.1999 and amended
    complaint was claimed against the
    three opposite parties. The third
    opposite party being the New India
    Assurance Company Limited, Sector
    17-D, chandigarh, the insurer of
    opposite parties Nos. 1 and 2.

       

    6.  After serving the notice of
    the complaint case, a joining reply
    was filled by the opposite party Nos.
    1 and 2. Certain preliminary
    objections was raised in the reply
    which states, briefly as under :

        

          
    (1) The complainant does not disclose
    the basis of the opinion formed by the
    complainant for any deficiency in
    service. No documentary proof has been
    filed along with the complaint from
    any specialist showing the treatment
    given by the opposite parties being
    not in accordance with the medical
    science.

         

          
    (2) There is no basis for claiming
    compensation for a sum of Rs. 7 lacs.
    The payment made to the opposite party
    Nos. 1 and 2 included other charges
    out of which a sum of Rs. 4,800/- were
    the operation charges.

         

    7.  It has been alleged that the
    amount of compensation claimed by the
    complainant is exorbitant. As a matter
    of fact the complainant approached Dr.
    Rohit Grover the answering opposite
    party No. 2 for removal of Cataract by
    automated machine called PHACO for
    short. The complainant was provided
    intra-ocular lens with phaco
    emulsification, which is the latest
    and safest method of Cataract surgery
    being most popular in America and
    opposite party No. 2 had been
    practicing on this line since 1994.

         

    8.  It was specifically averred
    in para 3 by the opposite parties that
    the complainant was told that since
    his right every has been weak since
    birth and even after operation, there
    will be certain limitation of vision
    as compared to normal eye. The
    complainant was using spectacles
    before operation of the number about -
    10.0 in the right eye which he never
    used as the eye never used as the eye
    never functioned well with the
    glasses. This condition of
    Anisometropic Amblyopia ( for short
    hearafter called lazy eye.) It was
    further contended that the success of
    the operation was absolute and the
    complainant was happy after having
    shown to Professor V.K. Dada of
    A.I.I.M.S, New Delhi. The complainant
    had absolutely normal post operative
    recovery except for the problem of
    weak right eye as explained above. It
    was also averred that as a matter of
    fact the complainant wanted to take
    leave on medical ground as he wanted
    to avoid posting out of station and he
    intended to prolong the medical leave
    with the help of opposite parties,
    which was refused and this complaint
    has been filed only after the said
    refusal on the part of the opposite
    party No. 2

       

    9.  In para 4 of the preliminary
    objections, it was contended that the
    eye has been traditionally compared to
    a camera and cinema project or where
    object of the outside world is focused
    on the other side of the lens. It is
    submitted that longer the eye larger
    will be the size of the image as is
    clear with the diagrams drawn and
    attached with this reply. If the
    object is focused on the retina of the
    eye and is viewed with internal lens
    system of the eye then the longer eye
    needs minus number of the glasses for
    focusing this image as is common that
    the minus numbered glasses make the
    image seen smaller and plus numbered
    glasses make the image appear bigger.

       

    10.  In the case of the
    complainant, there were conflicting
    situations due to inherent inborn
    condition, which makes it possible to
    give either near zero spectacles
    number with greater image size
    difference of the two eyes as is
    explained above and to keep the image
    size similar between the two eyes. It
    was categorically mentioned in the
    para aforesaid that the above matters
    were fully explained to the
    complainant. The treatment prescribed
    by the opposite party No. 2 is the
    correct treatment as per the
    Specialist’s opinion Dr. V.K.Dada in
    his book, the extract of which was
    attached with the reply. In nutshell,
    the opposite party No. 1 and 2 averred
    in the last paragraph of para No. 4 of
    the preliminary objection as under : 

       

       ” Hence the entire
    treatment given to the complainant by
    the respondents was in accordance with
    the latest Medical Science and the
    complainant has improved from the
    stage he was before operation”

       

    11.  On merits, the averments
    made in the complaint were replied to.
    The relevant paragraphs to which our
    attention was drawn are paragraphs
    9,10,11 and 12 to which references may
    be made as under : 

       

    12.  In para 9, the averments
    made in the complaint were denied and
    it was submitted that it is evident
    from post operative recovery that
    spectacles number was prescribed
    within two weeks of surgery. The
    difference of spectacle number of the
    two eyes which has been since
    childhood was reduced to a great
    extent. The correct power of lens to
    be implanted is decided after taking
    into account both eyes, if the size of
    both the eyes is similar and in the
    case of complainant his right eye was
    bigger than the left eye, hence there
    was a difference of image.

      

    13.  In Para 10, it was averred
    after denying the averments made in
    Para 10 of the complaint that the
    complainant failed to understand the
    meaning of diabolical images which he
    kept on asserting. It is submitted
    that the double image or diplopia can
    result if lazy eye is again put to
    work in late stage of life. The
    deficiency in power of glasses of the
    left eye, which was not operated,
    cannot be commented upon. The use of
    normal zero powered glasses as
    suggested to the complainant of his
    right eye is a very valid suggestion
    and is being adopted by the
    complainant.

       

    14.  It was further averred that
    the complainant started wearing
    glasses since he used to have double
    vision. However, he tried to wear the
    correct powered spectacle for his
    right eye during young age. If
    spectacle power of the right eye is to
    be matched with the left eye, that can
    be done at this stage but the
    persistence of double vision is likely
    to be there on account of image size
    disparity of two eyes due to
    difference in size.

      

    15. In para 11, the allegations made
    in the complaint were denied as
    incorrect and it was submitted that
    the complainant cannot read even the
    top line of the chart before the
    operation and after operation his
    vision was bought to 6/18 ( top 4
    lines) in the right eye. 

       

    16. In para 12, it was averred, inter
    alia, as under :

          “
    The complainant was explained that
    spectacles will be needed after
    surgery with limitation of vision due
    to inherent condition. The complainant
    probably has not informed about his
    right eye being probably has not
    informed about his right eye being
    lazy eye since birth and also did not
    mention that the underwent YAG Lazer
    Capsulotomy for his right eye at New
    Delhi on 7th of July, 1997 without the
    advice of the operative surgeon, which
    was not required at all and which is
    not taken atleast for three months
    after Cataract surgery. The power
    difference of the two eyes can be
    undertaken if the image size disparity
    factor is overlooked.”

      

    17.  The case proceeds ex-parte
    against the opposite party No. 3 – New
    India Assurance Company Limited. The
    parties filed their respective
    evidence in the shape of their
    affidavit and were cross-examined by
    the opposite Counsel. The learned
    Counsel for the complainant made his
    submissions before us which were
    replied to and given submissions were
    put forth by the learned Counsel for
    the opposite party No 1 and 2. We were
    taken through the record of the case
    in detail which included the reference
    to the pleadings and to affidavits and
    cross examinations of the parties.
    Both the parties relied on the case
    law regarding the case being brought
    under the category of medical
    negligence and consequently the
    deficiency in service on the part of
    opposite party No. 2 and the denial of
    it by the said party.

       

    18.  Before proceeding to
    consider the case of the complainant
    regarding deficiency in service on
    part of opposite party No. 2 and
    medical negligence on his part as the
    factor responsible for the persistent
    trouble in the eye of the complainant
    Mr. Yoginder Beri, it would be useful
    to refer to certain salient features
    of the case, as also to the evidence
    of the parties. It is undisputed that
    the complainant Mr. Yoginder beri had
    problem in his eyes and he consulted
    opposite party No. 2 Dr. Rohit Grover
    of the opposite party No. 1 – Grover
    Eye & ENT Hospital in May, 1997.
    It is also not disputed that the
    opposite party No. 2. Dr. Rohit Grover
    advised surgery in his right eye by
    imparting of interlocular lens with
    Phaco emulsification. For the Service
    rendered by the opposite party No. 2
    Dr. Rohit Grover for himself and on
    behalf of opposite party No. 1 the
    hospital, the requisite fees was
    charged from the complainant and the
    same is not in dispute. It is also not
    disputed that ultimately the right eye
    of Mr. Yoginder Beri was operated upon
    on the date fixed i.e., 27.5.1997 at
    6:30 a.m. at hospital (opposite party
    no 1) by opposite party No 2  Dr.
    Rohit Grover. It is also not in
    dispute that the complainant himself
    went to have consultation from Dr.
    V.K.Dada, Head of Department, All
    India Institute of Medical Sciences (A.I.I.M.S),
    New Delhi and that there he had some
    treatment of YAG Laser and other
    tests.

        

    19.  The dispute arises about the
    treatment by means of operation
    conducted by the treatment by means of
    operation conducted by opposite party
    No. 2 Dr. Rohit Grover on the right
    eye resulting to the problem in the
    eye of complainant regarding his
    seeing double image and
    incompatibility of images in two eyes
    i.e. right side operated eye and the
    left side eye. The main stand of the
    opposite party No 1 and 2 is that that
    right eye of the complainant Mr.
    Yoginder Beri was bigger than the left
    eye and the result of it was that he
    was having bigger image of the object
    in his right eye then the size of the
    image perceived through the vision in
    the left eye. According to the
    averments made in the reply of the
    opposite party No 1 and 2, this
    problem which he was having since his
    birth and childhood. It may also be
    mentioned that at the time of the
    initial check up of the eyes of the
    complainant Mr. Yoginder Beri was told
    by Dr. Rohit Grover about this
    abnormality and the fact that there
    was limited visual gain accepted in
    the right eye. The perusal of Annexure
    C-1 (2nd page0 will go to show that an
    endorsement was made regarding the
    right eye by Dr. Rohit Grover, which
    is as follows :

        

    ” Limited Visual gain Rt. Eye
    explained “

       

    Dr. Rohit Grover filed his affidavit
    by way of evidence and deposed therein
    the allegations made in written reply.
    The affidavit contains almost the same
    allegations with are mentioned in the
    written reply, a reference to which
    has already been made in the earlier
    part of our judgment.Dr. Rohit Grover
    was cross-examined by the complainant.
    In this cross-examination, he stated,
    inter alia, as under :

       

    ” After examining the
    complainant, I found that he suffered
    from Cataract in his both eyes. The
    right eye had more Cataract than the
    left eye. I advised surgery for the
    removal of Cataract in his right eye.
    The complainant was advised in the
    alternative two treatments, the one
    was the surgery for Cataract with
    stitches. I told the complainant that
    Phaco is the best available form of
    surgery regarding the treatment of
    Cataract. The difference between the
    two type of surgeries is that the
    Phaco surgery has the speedial
    recovery and is also safe than the
    other form of surgery for removal of
    Cataract. The document numbered C-2
    was prepared in my office regarding
    the treatment of the complainant. The
    attached document with C-2 has also
    been prepared by me. The number of
    eyes which are mentioned in the attached
    documents were prescribed after
    examination of the complainant by me.
    I have seen the documents C-3, C-4 and
    C-5 which are dated 27.6.1997,
    24.7.1997 and 27.5.1997 respectively
    and the same have been prepared by me
    in relation to the treatment of the
    complainant.

        

    The complainant had come to me with
    the complainant that he was not
    comfortable with spectacles containing
    the number given by me and I after
    examining him changed the number and
    gave another prescription for the
    spectacles. The complainant again came
    to me with the grievance that he was
    still not comfortable with his eyes
    and wanted my opinion to consult some
    other eye surgeon and have second
    opinion. I suggested him the name of
    Dr. Dada, Head of the Department, All
    India Institute of Medical Sciences (
    A.I.I.M.S. )…”

        

    20.  The complainant Mr. Yoginder
    Beri was cross-examined with reference
    to his affidavit dated 15.7.1999. The
    relevant cross-examination of the
    complainant may be referred to as
    under :

       

        “…it is
    correct that I used spectacles even
    prior to this operation. The right eye
    was provided with only pain glasses
    and in the left eye, I possessed power
    glasses. During the process of
    operation, which was held on
    27.5.1997, there might have been minor
    difficulty, otherwise, it was O.K. It
    is correct that after one week, I was
    provided with power glasses. I am
    unable to contradict that eye-ball of
    the right eye, in my case, is bigger
    as compared to the left eye.

      

         I thereafter
    went to the All India Institute of
    Medical Sciences [ A.I.I.M.S.] and
    consulted Dr. V.K. Dada. Beside, I
    also went to Government Hospital,
    Sector 32, General Hospital, Sector 16
    and P.G.I at Chandigarh. The doctors
    in the aforesaid Institute Verbally
    told me that the lens fixed by Dr.
    Grover, respondent No. 2 is wrong and
    that I should contact him once again.
    However, none of the doctors in the
    aforesaid Institute gave me written
    opinion in this regards. I have gone
    through para No. 4 of affidavit of Dr.
    Grover dated 23.7.1999 [ Annexure R/3
    ] and it is correct.

       

    It is correct that after the cataract
    operation, with the use of glasses,
    the vision was raised to 6/18. It is
    incorrect that before the operation, I
    could read even first three lines. It
    is correct that after the operation
    eye-sight of my right eye improved.

       

    It is correct that at New Delhi, I
    also had a laser, treatment. It was
    done in A.I.I.M.S. I don’t know that
    it was not permissible at least for a
    period of three months after the
    cataract operation. I may add that it
    has no relevance with the merits of
    the case.”

       

    The complainant Mr. Yoginder Beri in
    his affidavit reproduced the averments
    made in Para 10 and averred as point
    (a) about the adjustment by atleast
    one or two powers of the lens which is
    to be implanted in the eye by
    operation. This has referred to as
    having been stated  by Dr. Rohit
    Grover to him. It has already been
    referred to above that the averments
    made in Para 10 have been made
    admitted in the reply of opposite
    party No. 1 and 2 and the opposite
    party No. 2 has in his affidavit also
    denied the same. In cross examination
    of opposite party No. 2 Dr. Rohit
    Grover a suggestion was put to him as
    under :

       

    “…The lens to be replaced in
    normally taken out on or before the
    date of operation, before being
    inserted during the surgery. The type
    of that looking to the condition of
    the eye of the complainant, the lens
    of the strength of 8 or 9 ought to
    have been used but due to negligence
    or mistake, the lens of the power of
    12 was inserted in his right
    eye.”

        

    It appears that the word
    “denial” of the suggestion
    has been omitted to be mentioned. The
    statement in the cross-examination is
    to be read in the light of affidavit
    filed by the deponent i.e., Dr. Rohit
    Grover and also that stand taken by
    him in his reply. Viewed from this
    angel, this cannot be stated to be the
    admission of Dr. Rohit Grover at any
    rate and it was not even argued by the
    learned Counsel for the complainant.

        

    21.  A careful perusal of the
    statement of the complainant made in
    his cross-examination will got to show
    that he could not contradict the fact
    that eye ball of his right eye was
    bigger was  as compared to the
    left eye. He also admitted as a fact
    that after the cataract operation,
    with the use of glasses, his vision
    was raised to 6/18. He also stated
    that it was correct that after the
    operation, eyesight of his right eye
    improved. The complainant Mr.Yoginder
    Beri, as per his statement made in
    cross-examination underwent laser
    treatment at AIIMS, New Delhi. He was
    not aware of the fact that it was not
    permissible at least for the period of
    three months after the cataract
    operation. Mr.Yoginder Beri, however,
    went on to state that it had no
    relevance with his case. It is also
    noteworthy that the complainant Mr.
    Yoginder Beri not only consulted Dr.
    Dada at AIIMS, New Delhi but also had
    consultation in various hospital such
    as Government Hospital, Sector 32,
    General Hospital, Sector 16 and P.G.I
    at Chandigarh. The complainant also
    admitted as a fact that none of the
    doctors to whom he consulted after his
    operation gave any opinion in writing
    about the operation conducted after
    his operation gave any opinion in
    writing about the operation conducted
    by Dr. Rohit Grover being deficient or
    that Dr. Rohit Grover was medically
    negligent in performing the operation
    and in the implantation of
    intra-ocular lens Now since that
    complainant himself could  not
    contradict the fact that his eye ball
    of the right eye was bigger as
    compared to the left, the statement of
    Dr. Rohit Grover in regard to the
    problems faced by a person having such
    kind of defected size of eye ball
    becomes quite relevant. It cannot be
    said that the power of the lens
    implanted in the right eye of Mr.
    Yoginder Beri by Dr. Rohit Grover has
    not been done or proved by any
    reliable and cogent evidence of any
    specialist to be wrong and incorrect
    and thereby causing the problem said
    to be post-operative to the said eye
    of the complainant Mr. Yoginder Beri.
    At this place, it may be useful to
    refer though at the cost of repetition
    that the complainant had a definite
    improvement, even according to his own
    statement in the vision in his right
    eye and he was able to read the top
    four lines of the chart through he
    claimed in his cross-examination that
    even prior to operation, he could read
    top three lines which fact, he has not
    specialist. 

        

    Along with his reply, Dr. Rohit Grover
    has Sketches as Annexure R-1 of [1]
    Normal eye, [2] Myopia (Long eye) out
    of focus image, [3] Long Eye – Myopia
    with low power IOL Focused image of
    larger size, [4] Long eye with IOL and
    Minus Powered spectacle lens giving
    focused image of reduced size (
    similar to normal ).

       

    22.  In support of his defence,
    Dr. Grover attached extracts from the
    book on IOL and Phacoemulsification
    Secrets ( Second Edition ) by Dr.
    V.K.Dada, Professor of Ophthalmology,
    Dr. Rejendra Prasad Centre of
    Ophthalmic Sciences, All India
    Institute of Medical Sciences, New
    Delhi, India Publishers (P) Ltd.,
    B-23/23B, Ansari Road, Daryaganj,
    P.B.7193, New Delhi-11002, New Delhi.

       

    23.  Chapter 12 deals with power
    consideration in IOL and a reference
    is made to the following question and
    answers [ marked with red ink by
    opposite party No. 2 Dr. Rohit Grover
    ]  :

       

    Q : State some relevant factor
    concerning intraocular implant power ?

       

    Ans : 1. Patient involved in near work
    for most of the day may be over
    corrected in implant to be without
    glasses for near. Minus spectacles
    should be given for distance

            
    2. A preoperative myope should over
    corrected in implant to be with myopic
    glasses postoperatively.

            
    3. Fellow eye with good vision with
    glasses demands a similar spectacle
    power in the operated eye to prevent
    intolerable anisometropia.

            
    4. Fellow eye with gross diminution of
    vision is not considered in power
    calculation of impant.

            
    5. It is better to impant + 19.00 D
    Standard powered implant if
    keratometry and axial length
    measurement facilities are not
    available because 80% of the implants
    are powered between + 18.00 to 20.00 D
    (Author’s observation).

            
    6. Chances of having ametropia more
    than 2.00 D is 5% and more than 5.00 D
    is less than 1%.

         

    24.  Apart from it, extracts of
    book o n “Refraction and Clinical
    Optics” edited by Aran Safir,
    M.D., Director, Institute of Computer
    Science, Mount Sinai  School of
    Medicine of the City, University of
    New York, New York City,  has
    been annexed and reference has been
    made to the underlined portion under
    the heading “Intraocular
    Lens/Spectacle Combinations”,
    which is reproduced as under :

        

    ” Most patients with intraocular
    lenses do require additional 
    spectacle correction (27, 28), and the
    net image magnification is the product
    of that induced by the intraocular
    lens and that of the spectacle. Since
    aniseikonia refers to a difference in
    the size of the retinal images of the
    two eyes, it is also necessary to
    consider what image magnification or
    minification is induced by the
    spectacle correction of the phakic
    eye…”

       

    25. It will be relevant to bear in
    mind that after getting the right eye
    operated from opposite party No. 2 Dr.
    Rohit Grover, the complainant Mr.
    Yoginder Beri consulted other eye
    surgeons at different hospitals
    mentioned above at Chandigarh and also
    consulted Dr. Dada at A.I.I.M.S., New
    Delhi and also had laser treatment and
    other tests which facts were not in
    the knowledge of Dr. Rohit Grover 
    and the consultations were not made
    with the consent of the opposite party
    No. 2. In other words, the complainant
    himself decided to have second and
    subsequent opinion and treatment after
    his operation aforesaid conducted by
    Dr. Rohit Grover. It was also
    significant to note that apart from
    the statement of the complainant. Mr.
    Yogendra Beri, there is no other
    medical evidence of any eye specialist
    to show that the diagnosis of the
    ailment in the eyes of the complainant
    made by the opposite party No. 2. Dr.
    Rohit Grover was incorrect and faulty
    and line of treatment prescirbed and
    given by the opposite party No. 2 was
    not the correct line of treatment. It
    cannot thus be held on the basis of
    the evidence on record that Dr. Rohit
    Grover on facts, was either negligent
    in performing the operation and
    providing treatment to the complainant
    Mr. Yoginder Beri or was deficient in
    any way in rendering the services
    hired by the complainant Mr. Yoginder
    Beri.

        

    26. Now coming to the case law relied
    on by the learned Counsel for the
    respondent reported in III (1997) CPJ
    41 (NC)=1997 (2) CPR 126, Kailash
    Kumar Sharma v. Dr. Hari Charan Mathur    ,
    decided by the Hon’ble National
    Consumer Disputes Redressal
    Commission, New Delhi (for short
    hereinafter referred to as the
    National Commission), on29.5.1997. In
    this case, the complainant claiming
    compensation on the ground that loss
    of vision was because of improper
    implantation of I.O.L as per opinion
    of another doctor. The Hon’ble
    National Commission held that in
    absence of any evidence that loss of
    vision after operation for cartaract
    was due to negligence of doctor, the
    complainant’s claim for compensation
    against the doctor was liable to be
    dismissed. The complainant Kailash
    Kumar Sharma in the said case had
    claimed a compensation of Rs. 5 lacs
    besides a sum of Rs. 17,000/- has been
    towards the cost of operation. The
    opposite party i.e. Dr. Hari Charan
    Mathur while contesting the complaint
    case made the following submissions :

        

    “(i) The complainant was under
    his treatment in the hospital
    since15.9.1980

     (ii) The record in the hospital
    about the patient on 18.2.1991 showed
    that his left eye could not improved
    any further with glasses consequent to
    which he was advised a cataract
    operation of that eye.

       

     (iii) The complainant was
    apprised of all surgical options and
    advantages and risks therein, on which
    he deliberated for over a fortnight
    and confirmed the choice of the
    operation on 6.3.1991; he signed a
    consent form whereby he agreed to have
    an intraocular lens implanted, of his
    free Will and accepted responsibility
    for all its benefits and ill-effects.

     (iv) The opposite party has
    taken all due care in the conduct of
    the operation., and was not negligent
    in any way.

     (v) There was always a small
    chance that the human body might
    reject the implant of foreign body.

     (vi) Any allergies that may
    develop following reactions of such
    implantation can be countered by drugs
    which was the course adopted by the
    opposite party in the instant case and
    while the complainant was already
    responding to such a course.

     (vii) He did not come for
    revaluation thus contributing to the
    damage of his eye.

     (viii) The complainant had been
    visiting the opposite party for over
    eleven years because of the former’s
    faith in the latter.

     (ix) The deficiency, if any, in
    the quality of the lens cannot be
    adjudged as the same is implanted in
    the complainant’s eye.”

       

    27. It would appear from the judgment
    that the State Commission came to the
    conclusion that the complainant had
    failed to forward the burden of
    negligence on the opposite party and
    costs of Rs. 1,000/- was awarded to
    the complainant from the opposite
    party. The Hon’ble National Commission
    dealt with the submissions of the
    appellant in Para 4, which in our
    opinion is quite relevant to be quoted
    and it reads as under :

      “4. Aggrieved by this
    order, the complainant has filed this
    appeal before us. The appellant due to
    his inability to attend the requested 
    the Commission for exemption from
    personal appearance. In the appeal,
    the appellant has reiterated his
    submissions he had made before the
    State Commission. He has appointed out
    on that on his not getting his vision
    after the operation he got his eye
    examined by eye doctor who told him
    that he lost his full eye vision
    because the IOL, implant was not
    properly done. He has further pleaded
    that the State Commission has not
    appreciated his mental, suffering and
    instead imposed on him cost of Rs.
    1000/-.The respondent has pointed out
    that the appelant’s allegation about
    improper implantation of IOL based on
    the opinion of another doctor was a
    new allegation and that there was no
    evidence to substantiate the
    same. We have carefully gone through
    the records and heard the Counsel for
    the respondent-opposite party. While
    the appelant has a real grievance
    about the loss of vision, he has not
    produced any document or other
    eveidence to establish the negligence
    or deficiency of service on the part
    of respondent. As observed by the
    State Commission, the complainant’s
    quantification of compensation for the
    alleged negligence has no basis . At
    the same time, the complaint cannot be
    dispensed with as frivolous. In the
    facts and circumstance of the case
    while we concur with the orders of the
    state to dismiss the complaint , we
    are inclined to  set aside that
    part of the order of the state
    commission relating to set aside part
    of the commission relating to the
    appellant herein to pay costs of Rs
    1000/- to the respondent opposite
    party. The appeal is disposed of as
    above .No costs.”

        

    28.  In our considered view , the
    case law cited by the learned counsel
    for the respondent is quite acceptable
    to the  facts of the instance
    case.Resultantly  , the
    complainant has failed to prove the
    deficiency in service on the part of
    the opposite party no2 Dr Rohit Grover
    of opposite party no1 -Grover Eye
    & ENT hospital and has further
    failed to show that Dr Grover was in
    anyway negligent in providing
    treatment prescribed by Dr Grover and
    consulted several other eye
    specialists at Chandigarh and also at
    AIIMS at NEw Delhi where he underwent
    laser treatment and other tests which
    according to Dr Grover he should not
    have taken soon after the operation
    for the cataract in his right eye..In
    other words the complainant himself is
    responsible to the condition of the
    eye , in which he is placed after the
    operation.Since the complaint fails
    against opposite party Nos 1 and 2 the
    question of any liability on part of
    opposite party no 3 – namely New India
    Assurance doesnot arise qand the
    complaint deserves to be dismissed
    against the opposite parties.The
    opposite party no3 is the insurance
    company which has insured the opposite
    party nos1&2.

      Consequently the complaint
    lacks merit and is dismissed.However
    in the circumstances of the case the
    cost of the complaint shall be borne
    by the parties themselves.

        

    Copies of the judgement be supplied to
    the parties free of charges.

         

    Complaint dismissed.

         

  • Ms. Rohini Devi v. Dr.
    H.S. Chudavat & Anr.

    2001 (3) CPR 172 (NC)



    Consumer Protection Act, 1986 – Sections 12 and 17 – Medical Negligence – Complainant got cataract in right eye operated and Intra Ocular Lens was got implanted – Loss of eye vision – Claim for compensation – Defence plea that complainant failed to come for follow up treatment – Facts and material showing that complainant-appellant was not going for follow up treatment – No challenge to evidence of respondent doctor about procedure followed by him for IOL implantation by any expert evidence – It was not enough for complainant to prove negligence by fact that record IOL implantation had to be removed after 8 months – It was for appellant to prove negligence by examining expert witness – Appellant was rightly held to have failed to establish negligence on part of respondent. (Para 4)



    Result : Appeal dismissed.




    IMPORTANT POINT



    In a case of medical negligence it is for complainant to prove negligence by examinig expert witness.




    ORDER



    B.K. Taimni, Member – This appeal arises out of the orders passed by the State Commission dismissing the complaint of the Appellant.



    2. Brief facts necessary to appreciate the case are that the Appellant approached the Respondent for treatment of cataract in her right eye who after investigation operated her for cataract and implanted Intra Ocular Lens
    (I.O.L.) on 24-10-1991 so as to enable the appellant without the use of spectacles. The
    I.O.L. implantation was not successful. Second implantation of
    I.O.L. was carried out on 1-4-1991. Even this was not to the satisfaction of the appellant, hence they approached the General Hospital who on 7-1-1992 removed the
    I.O.L., Allegation is that on account of negligence, incompetence on the part of Respondent, the appellant has lost her vision of right eye on account of which the appellant approached the State Commission for awarding relief amounting to
    Rs. 9.5 lakh against the Respondent Doctor.
    The State Commission after hearing
    both the parties found no negligence
    on the part of the Respondent Doctor
    and dismissed the complaint. It is
    against this order that the
    Appellant/Complainant has filed the
    appeal.

       

    3. It was argued by the learned
    Counsel for the Appellant Sh. Taneja
    that, even though two operations were
    carried out by the Respondent Doctor,
    it is at the time of second operation
    i.e. on 1-4-1991 that the Doctor was
    negligent resulting in the loss of
    vision in the right eye. The very fact
    that the two I.O.L. implantation did
    not help the patient and the fact that
    it had to be removed by the General
    Hospital itself is a proof of medical
    negligence on the part of the
    Respondent. He also argued that the
    main ground of defence of the
    Respondent that the appellant did not
    come up for follow up treatment is not
    sustained by the material on record.
    According to him after the discharge
    from the Respondent’s Hospital, the
    appellant visited for follow up on
    19-4-1991 to 22-4-1991, and again on
    29-4-1991, 1-5-1991, 6-5-1991,
    16-5-1991 to 19-6-1991 and 29-6-1991
    in support of which drew our attention
    to prescriptions. Bill of Respondent
    No. 1 that the appellant was given
    proper treatment i.e. operation for
    cataract and implantation of Intra
    Ocular Lens for the first time on
    24-10-1991, which was successful to
    the extent that the appellant did not
    complaint till 22-3-1991 wherein she
    was advised to have a more expensive
    implantation of imported lens. This
    was done on 1-4-1991 and the appellant
    paid the charges on 1-5-1991,
    thereafter, the appellant neither came
    for follow up treatment nor did he
    hear from her till a legal notice
    served on him on 5-8-1991 after about
    four months of second I.O.L. The
    respondent has fully explained the
    procedure adopted by the Respondent
    while carrying out I.O.L.
    implantation. This procedure has not
    been assailed at all by any expert.
    Negligence is not proved against the
    Respondent Doctor. If there has been
    any negligence. It is on the part of
    the Appellant who did not observe the
    follow up treatment. It is true that
    Respondent is insured with the
    Respondent No.2 Company but since
    there has been no negligence,
    insurance company cannot be approached
    for any relief. It was argued by the
    learned Counsel for Respondent No. 2
    that the total insurance cover enjoyed
    by the Respondent is for Rs. 7.5.
    lakhand for anyone event it is Rs. 3.5
    lakh. They would be willing to honour
    their part of the commitment but
    within the terms of the Policy.

        

    4. We have given our careful
    consideration to the arguments
    advanced by the learned Counsel for
    both the parties and material on
    record. Since there is no dispute on
    basic facts of the case, we will not
    like to deal withem at this stage.
    Main argument of the Appellant is that
    in view of material on record, it
    cannot be said that the appellant did
    not go for follow up treatment after
    the second implantation of I.O.L. We
    see on record that there are two set
    of papers prescription and medical
    bills on which the appellant relies
    and wishes us to believe that indeed
    the patient did present herself for
    follow up treatment. Prescriptions on
    follow up relate to the period from
    19-4-1991 to 1-5-1991, after this
    there is no prescription on record.
    Then we have medical bills for the
    period 2-5-1991, 22-4-1991, 31-3-1991,
    15-5-1991, 19-5-1991, where one can
    understand medical bills dated
    22-4-1991 and 1-5-1991, there is no
    prescription for the medicine bills
    correlating to purchases of medicine
    on 16-5-1991 and 19-5-1991. The
    emerging status in no way supports the
    contention of the appellant that she
    was going for follow up treatment,
    leaving us with the impression that
    the appellant did not go for follow up
    treatment. If the patient/appellant
    did indeed lose vision immediately or
    as a result of second I.O.L.
    implantation on 1-4-1991 then what was
    the appellant doing till 3-8-1991 – a
    period of four months i.e. date of
    legal notice to the appellant. In
    these circumstances we are left with
    no choice but to agree with the
    contention of the Respondent Doctor
    that the appellant never showed up
    after 1-5-1991 when she came for
    settlement of the bill. We also see
    that in the affidavit of the
    Respondent, he has given in great deal
    the procedure followed by him for
    I.O.L. implantation . This has not
    been challenged based on any ‘expert’
    evidence. It is not enough to state
    that after eight months of the second
    operation. I.O.L. implantation had to
    be removed, thus proving negligence of
    the Respondent. This could at best be
    a ground but certainly not a proof of
    negligence. It was for the appellant
    to prove negligence by examining
    expert witness challenging the
    procedure adopted by him, which a
    doctor claiming specialisation in this
    regard would not have done. It was for
    him to prove by evidence either by
    oral evidence or through a standard
    medical literature, either that the
    Doctor did what he ought to have done,
    resulting in a situation where the
    patient finds herself. In this case no
    such evidence has been led to
    contradict the evidence adduced by way
    of evidence, by the Respondent-2,
    thus, in our view the appellant has
    failed to prove any negligence on the
    part of Respondent-2.

       

    5. In our view the Appellant has not
    been able to prove any point of fact
    or law for us to interfere in the
    reasoned order of the State
    Commission. The appeal is dismissed.
    No order on costs.

      

    Appeal dismissed.

       

         


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  • Nirmalendu Paul v. Dr. P.K. Bakshi
         I (2001) CPJ 466
      
    Consumer Protection Act, 1986 - Section (14) (1) (d) – Medical Negligence – Wrong Surgery – Non- removal of Cord After Operation – Eye operated – Thread cord not removed, resulted in loss of vision – Expert opinion to support the allegation of negligence not produced – Loss of vision attributable to wrong surgery not observed by any renowned Physicians – Complainant failed to prove the allegations – Not entitled to any relief.
      
    Held : The complainant makes opposite party-1 responsible for losing the vision of his left eye. He states that one thread  cord was not removed after the initial operation. But it was removed after a lapse of 2 years when he complained of losing regular shape of left eye. According to the complainant this non – removal clinical and radiological examination, the complainant had been found to have compound comminuted fracture patella. The complainant was advised surgery and it explained to him that either broken pieces of patella are required to be removed or a attempt could be made to repair the patella by putting the wire around the same . The patient was admitted in the hospital for surgery with his consent and the opposite party decided to repair the fractured pieces of patella in view of the younger age of the complainant, which was the standard treatment . The complainant was give I.V. fluids and I.V. antibiotic cover. Under spinal anaesthaesia given by the anaesthesist under tourniquet control and under all aseptic conditions, fracture was exposed. All the fragments were held close to each other by self retaining towel clips. After maintaining articular congruency, a circumferential wire was put around all the fractured pieces of patella and wire was tightened . Quardriceps expansions were repaired and wound was closed over a drain and plaster was applied. Thereafter , upto 18.10.1996 the dressing of the operated wound through window in the plaster were regularly changed and when the wound had become healthy, the complainant was discharged in satisfactory condition from the hospital. The complainant was advised to visit the hospital for further check-up from time to time . Thereafter, the complainant had come for treatment as OPD patient. The OPD record was retained by the patient, as the prescription slip was handed over to him. As per the Photostat copy of the prescription slips produced by the complainant before the District Forum, plasters were changed twice on 18.11.1996 and 18.12.1996 and thereafter the complainant came up for follow up on 2.3.1997 and 5.12.1997 . From the record produced on the file, the complainant appeared to have visited Dr. Salaria on 6.2.1997 . On 5.12.1997 the complainant was advised wire removal, but to the best of knowledge of the opposite party , he did not get wire removed , which could be the cause of pain complained by the complainant . Complainant was given proper, prescribed and accepted treatment as required to the particular case in view of the younger age of the complainant. The complainant had yet to undergo further treatment by way of removal of wire and removal of lower fragment of patella, in case , it continued to cause pain and problem to the complainant, even after the removal of wire.
      
    Initially the complainant filed a case before the District Forum at Chinsurah , Hooghly but subsequently it was withdrawn with liberty due to sue fresh. Thereafter , he approached this commission claiming compensation of Rs. 50,000/- together with refund of all expenses incurred by him towards charges received by the opposite parties. He has also claimed damages and compensation against the opposite parties.
      
    The opposite parties have filed a written objection denying the allegations contained in the complaint petition. It is , however admitted that opposite party-1 performed operation on the left eye of the complainant on 29.6.1993.  According to the opposite parties, opposite party -1 is a doctor by  profession since 1969 . It has been claimed that he is attached to various medical institutions and hospitals both in and outside country . He has specialization in Opthalmology.
     
    According to the opposite parties the complainant was first examined by opposite parties -1 on 18.3.1993 when he noticed Cataracts in both eyes and suspected Glaucoma changes in both eyes. The patient was referred to Dr. Saha made Glaucoma Test, i.e. Tonometry , Gonioscopy and Perimetery Test on both the eyes with early filed changes in the left eye. Accordingly , the doctor advised the complainant for Cataract extraction and trab left eye. Accordingly , the doctor advised the complainant for Cataract and trab left eye first followed by right eye. Since the complainant agreed, tentative date for operation was fixed on 29.6/1993 amd tje [atoemt was govem doscjarge certofocate pm tjat date. The other allegations contained in the complaint petition have been denied and disputed. It has been specifically denied that there is negligence on their part in the matter of treatment of the patient . Accordingly , the opposite parties prayed for dismissal of the complaint petition.
     
    At the time of hearing, the complainant appears in person and argues the case. The opposite parties are represented by their Counsels . Be that as it may, the undisputed fact is that the complainant having trouble in his left eye approached opposite party-1 for treatment. Opposite party-1 referred him to Dr. Saha for further investigation because he found Cataracts in both eyes and suspected Glaucoma changes in both eyes. After the report pf Dr. Saha was available the same was produced before opposite party -1 who advised the patient for Cataract extraction and trab left eye first pre-operative routine examinations which were done and the date of operation was fixed on and he was discharged on the same date. Thereafter, the complainant consulted opposite party of the Cord was an act of negligence on the part of opposite party-1 and this resulted in the loss of vision was attributable to the wrong surgery done by opposite party - 1 . The complainant does not examine any expert on the subject to eastablish his allegation of negligence on the part of the doctor. to succeed in a case like this . We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of complaint. Under the circumstances, we cannot but hold that the complainant has failed to prove the allegations against the opposite parties. So he is not entitled to get any relief in this case .
     
    RESULT : Complaint dismissed.
       
    ORDER :
    Mr. Justice S.C.Dutta , President - The petitioner , Shri Nirmalendu Paul, aged 73 years approached the opposite parties for the first time on 18.3.1993 for the treatment of his eye. Opposite party-1 , is a Surgeon and Specialist in Intraoculur Lens implant and Micro-surgery and is attached to opposite party-2 , an Eye Foundation Centre. After examination of complainant , opposite party-1 observed that the poor vision in his advice, the petitioner went through some pre-operative tests. He was also examined by one Dr. D.K. Saha an associate of opposite party-1 and a specialist in the subject.
      
    On 29.6.1993, the complainant got himself admitted in the Clinic of opposite party-2 and Surgery was done in the left eye of the complainant. Thereafter, the complainant visited several times to the chamber of opposite party -1 for post-operative care and treatment. The petitioner claimed that the opposite arty has taken a total sum of Rs. 30,000/- on several occasions towards operation charges and other fees. It has been alleged that the opposite parties did not grant receipt for all the money they have received. According to the complainant because of gross negligence the vision of his left eye has been impaired. Gradually, the condition of his left eye deteriorated . The complainant consulted several other renowned Eye surgeons of the Town and was under their treatment for some 1.8.1995 , the complainant again met opposite party-1 who examined him and referred the complainant Dr. Siddhartha Bose . The said doctor doctor suggested re-operation of the left-eye . On 8.8.1995 , the complainant attended the Chamber of opposite party-1 when he was taken to the Operation Theatre. The petitioner felt that a Cord has been removed from his eye. According to the complainant the non-removal of the Cord at the time of the first operation was an act of gross negligence. His left eye had become smaller compared to the right eye . He suffered permanent disability in his left eye due to wrong operation. The complainant consulted Dr. V. Pahwa on 27.11.1995 and understood that he lost vision of the left eye because of wrong operation. The complainant wrote a letter to opposite party-1 making allegation about the damage done to his left eye by the operation. Subsequently , he served Lawyer’s notice upon opposite party-1 claiming compensation.party-1 on various occasions and was also under his treatment. Being dissatisfied with the result of operation, the complainant consulted some renowned Surgeons of the Town for regaining vision of his left eye. But there was no improvement, and he lost vision of his left eye. The complainant makes opposite party-1 responsible for losing the vision of his left eye. He stated that one thread Cord was not removed after the initial operation . But it was removed after a lapse of 2 years when he complained of losing regular shape of left eye. According to the complainant this non -removal of the Cord was an act of negligence on the part of the opposite party . 1 and this resulted in the loss of vision. As noticed , earlier the complainant consulted various renowned Physicians of his town but none of them has observed that the loss of vision was attributable to the wrong surgery done by opposite party-1. The complainant does not examine any expert on the subject to establish his allegation of negligence on the part of the doctor Unfortunate though the incident is , the complainant has failed to prove allegations against the opposite parties. So he is not entitled to get any relief in this case.
      
    In view of the aforesaid, we think that the case should fail. Ordered that the case be and the same is hereby dismissed on the contest but without cost.
      
    Complaint dismissed.
                  

  • 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.
        

  • Dr. I Ahmed v. Sumitra Biswas
    2001 (2) CPR 306
         
    STATE CONSUMER DISPUTES
    REDRESSAL COMMISSION, WEST BENGAL; CALCUTTA
        
    Consumer Protection Act, 1986 – Sections 2 (1) (o) r/w 2 (1) (g) and 15 – Complaint of deficiency in medical service by eye surgeon in performing cataract operation allowed by District Forum on ground that operation was done in hot haste without preoperative investigations – Appeal against – Case of wave complications – Defence of error of judgment or choice of treatment denied to appellant – Whether justified ? (No) – Appeal allowed.
       
    Held: We notice that in this case the Appellant had stopped the operation, closed the eye of the complainant by Pad and referred her to SSKM Hospital for better treatment. The complainant was admitted in the Nursing Home at 5-30 p.m. on 21-8-1998 and he was discharged on 23-8-1998 at about 10.00 a.m. The Forum noticed that the error of the judgment or the choice of the treatment is a good defence which can under the circumstances in a particular case be set up by an answering Doctor but the Forum observed that in this particular case, the Doctor was responsible for a misadventure in deciding to operate the eye of the complainant on the every same day when she was first examined. It may be observed that the Forum over looked the fact that before fixing a date for operation. The Complainant was examined thrice and several routine pre-operative investigations were suggested. Ld. Counsel for the Appellant has drawn our attention to the notings on the left hand side of the prescription (Annexure`A’) to urge that the intra-ocular pressure of the patient was recorded on 19-5-1993 when she was examined for the first time. He submits that the notings therein indicate that it was normal. It appears that the Forum noticed the observation of the several authorities in this regard and there is nothing to show that the O.P. was guilty of negligence. He did not, in our view, fall short of this standard of a reasonably skilled man when this type of incident may occur in one out of 1,000 cases. Anyway, having regard to the facts and circumstances of the case and the authorities on the subject we find that the Forum was not justified n finding the present Appellant guilty of negligence in the matter of performing operation. The Forum ought to have dismissed the case. For the reasons aforesaid we find substance in the Appeal which is hereby allowed and the judgment of the Forum is set-aside and the complaint petition be dismissed on contest but without any cost. ( Para 5 )
         
    Result : Appeal allowed.
         
    Counsel for the parties:
       
    For the Petitioner / Appellant : Mr. Prabir Basu, Mr. D.B.Chowdhury and Mr. A. Dutta, Advocates.
       
    For the Respondent / O. P. S. : Mr.T. Banerjee, Mr. S. K. Dutta and Mr.A. Mitra, Advocates.
         
    IMPORTANT POINT
       
    The Forum ought to have dismissed the case of medical negligence when this type of incident may occur in one out of 1000 cases and the surgeon did not fall short of a reasonably skilled man. 
        
    ORDER
        
    S. C. Datta, President – This is an appeal by the O.P. against the order of the Forum dated 24-4-2000 directing payment of compensation of Rs.1,50,000/- to the Complainant together with interest @ 12% p.a.
      
    2. Briefly stated the fact of the case is that the petitioner a young unmarried lady approached the O.P. an Eye Surgeon with complication in her left eye. The Petitioner was referred to the said Eye Surgeon by one Dr. Ajit Sarkar of Nabadwip. On examination O.P. fixed 21-8-1998 as the date for operation of her left eye and referred her for admission in Central Nursing Home, Krishnanagar. On admission, her left eye was operated upon on the said date i.e. on 21-8-1998 at about 9.00 p.m. Following the Surgical Operation, the left eye of the complainant got damaged and there was profuse bleeding. On 23-8-1998 at about 10.00 a.m. the Complainant was discharged from the said Nursing Home and she took admission in S.S.K.M. Hospital and was detained there for 20 days for treatment. Subsequently, she was also treated at B.R. Singh Hospital. She was also received treatment from Sankar Netralaya, Madras, after being discharged from B.R. Singh Hospital. It has been alleged that because of negligence and carelessness on the part of the O.P. her left eye has been totally damaged and she lost her vision or the left eye for ever. Accordingly, she approached the Forum claiming compensation..
       
    3. The case was contested by the O.P. by filing a written version wherein the allegations of the complainant were denied and disputed. According to the O.P. the operation was done after routine pre-operative checks and test. There was rapid rise of intra-ocular pressure and lens was being pushed up. Several medicines were administered to reduce the said pressure but unfortunately the lens nucleus popped out and vitreous followed and it was a case of impending expulsive haemorrhage. According to the O.P.every precaution was taken and post-operative care was taken to control the bleeding. The bleeding was controlled on 23-8-1998 when she was advised to consult Vitreous Retinal Expertise and was referred to the Eye Department of S.S.K.M. Hospital. According to him, the incident which occurred is one of the most frightening and serious complications of Cataract Surgery and it is very rare and it happens only on few occasions. 
        
    4. On consideration of oral and documentary evidence the Forum found that negligence on the part of the Eye Surgeon was proved beyond all reasonable doubts. Accordingly, the Forum awarded compensation to the tune of Rs.1,50,000/- upon computation of the income of the Complainant of the mental agony and financial stringency of the Complainant.

    5. Feeling aggrieved thereby the Eye Surgeon who was the O.P. before the Forum has appealed. According to the Appellant, the Forum was wrong in observing that the Operation was done in hot hast and mechanically without application of medical mind and without advising the patient to get all preliminary pre-operative investigations done. Ld. Counsel appearing for the Appellant submits that the Forum failed to take notice of the fact that all pre-operative investigation were done and the operation was not done in hot haste. In this connection he has drawn our attention to the prescriptions given by the Eye Surgeon. It appears there from (Annexure `A’) that the complainant was first examined by the Eye Surgeon on 19-5-1998. She was advised to undergo some routine pre-operative investigations. Again on 7-5-1998 the complainant was examined by the Surgeon. On 9-8-1998 the Surgeon upon examination of the patient advised admission in the Nursing Home and fixed 21-8-1998 as the date for operation. The notings in the prescription (Annexure `A’) clearly show that the Doctor prescribed pre-operative tests and fixed the date for operation after those tests were done. There is no dispute that the operation was done on 21-8-1998. According to the Surgeon it is a case of impending expulsive harmorrhage and the only treatment is vitreous retinal surgery. The Surgeon has referred her to SSKM Hospital for better management and treatment. On 23-8-1998 she was admitted there and was detained therefore 20 days for treatment. Subsequently, she got treatment at B.R.Singh Hospital and lastly at Sankar Netralaya but none could cure the ailment nor restore her vision of the left eye. There is no opinion of the attending Surgeons attached to any of the institutions referred to above regarding the negligence of the present O.P. in the matter of conducting surgery. The Ld. Counsel for the Appellant submits that the Forum was not justified in coming to the conclusion that none of the Doctors would offer their opinion in writing against the answering Doctor of the present case. He submits that this assumption of the Forum is totally unfortunate and unjustified. The complainant has examined one Dr. Bimal Kr.Hore (PW-5) who is an expert in the field. He has opined that there is a chance of expulsive haemorrhage and it may occur at any time during Surgery and that the only treatment is vitreous retinal surgery. He has further opined that the Doctor should have closed the eye and referred the patient to any other hospital for better treatment. We notice that in this case the Appellant has stopped the operation, closed the eye of the complainant by Pad and referred her to SSKM Hospital for better treatment. The complainant was admitted in the Nursing Home at 5.30 p.m. on 21-8-1998 and he was discharged on 23-8-1998 at about 10.00 a.m. The Forum noticed that the error of judgment or the choice of treatment is a good defence which can under the circumstances in a particular case be set up by an answering Doctor but the Forum observed that in this particular case, the Doctor was responsible for a mis-adventure in deciding to operate the eye of the complainant on the very same day when she was first examined. It may be observed that the Forum our looked the fact that before fixing a date for operation the complainant was examined thrice and several routine pre-operative investigations were suggested. Ld. Counsel for the Appellant has drawn our attention to the notings on the left hand side of the prescription (Annexure `A’) to urge that the intra-ocular pressure of the patient was recorded on 19-5-1993 when she was examined for the first time. He submits that the notings therein indicate that it was normal. It appears that the Forum noticed the observation of the several authorities in this regard and there is nothing to show that the O.P. was guilty of negligence. He did not, in our view, fall short of this standard of a reasonably skilled man when this type of incident may occur in one out of 1,000 cases. Anyway, having regard to the facts and circumstances of the case and the authorities on the subject we find that the Forum was not justified in finding the present Appellant guilty of negligence in the matter of performing operation. The Forum ought to have dismissed the case. For the reasons aforesaid we find substance in the Appeal which is hereby allowed and the judgement of the Forum is set-aside and the complaint petition be dismissed on contest but without any cost. Appeal allowed.
        

  • Mr. Yoginder Beri v. Grover Eye & E.N.T. Hospital & Ors.
    2001 (2) CPR 358
        
    For more details     click here
        

  • T. N. GHOSH v.DR. V. PAHWAL
    II (2001) CPJ 473
     
    WEST BENGAL STATE CONSUMER
    DISPUTES REDRESSAL COMMISSION,
    CALCUTTA
      
    Consumer Protection Act, 1986 – Section 15 - Appeal – Medical Negligence – Casual and careless examination by opposite party resulted in loss of vision – Complainant failed to prove the allegations of negligence on part of opposite party, not entitled to any relief.
     
    Result : Appeal dismissed.
     
    ORDER
     
    Mr. Justice S.C. Datta, President – This appeal is directed against order dated 6.8.1999 whereby the complaint was dismissed on contest. The Forum observed that the complainant has failed to establish any case of negligence on the part of the present respondent.
     
    Being aggrieved by the decision of the Forum the complainant has preferred this appeal on the ground that there has been gross miscarriage of justice. According to the appellant the negligence of the respondent is writ large on the face of the prescriptions of the respondent given by Dr. Pahwa himself.  His allegation is that Dr. Pahwa failed to diagnose the ailment of both of his eyes by all necessary examinations either by himself or by his assistants.  He specifically alleges that Dr. Pahwa failed to detect the glaucoma in his eyes though it had started developing in 1987.  Admittedly, the complainant was under the treatment of the opposite party for nearly 3 years from 1991 to 1994. His first visit to Dr. Pahwa was on 18.6.1991 when the doctor detected some black spots in his eyes. The doctor could not detect glaucoma at that time nor could it be detected on subsequent visits to the doctor. On the advice of the doctor he visited him after 6 to 8 months for review. Even during such visits glaucoma could not be detected.  All the time the doctor told him that he was afflicted with cataract and since the cataract did not mature the doctor did not advise for operation. The grievance of the complainant is mainly that the doctor being a busy practitioner could not devote sufficient time and give due care to examine him properly resulting in wrong diagnosis. His vision having visibly deteriorated, he approached Dr. Bakshi for examination of his eyes and treatment. Dr. Bakshi examined him on 29.6. 1994. At that time too Dr. Bakshi could not detect glaucoma in the yes of the complainant. Later on the glaucoma was detected and by this time his vision was greatly impaired. The complainant states that all the required tests could have been done on the first day of his visit to Dr. Pahwa and had these been done, the glaucoma would have been detected. The complainant was losing his eye sight very fast. Ultimately, his vision of right eye was totally impaired and he has become blind of one eye and for this unfortunate development he lays blame upon Dr. Pahwa.  His grievance is that the doctor made some cryptic notes in the prescription and released him after 4 or 5 minutes of casual examination. He alleges that proper care and attention was not given to him by the opposite party. It is not disputed that the eyes of the complainant were examined at intervals of 6 to 8 months and sometimes one year also and on each occasion the doctor advised him to come for review. According to the complainant this casual and careless examination by the opposite party resulted in the loss of vision. We noticed earlier that when he was examined for the first time by Dr. Bakshi, the latter did not notice glaucome on  his eyes. Later the glaucome was detected. In the meantime damage was done to his right eye and his vision was totally impaired. It appears that the Forum discussed the materials available with the record threadbare and came to the clear conclusion that the complainant has signally failed to prove the allegations of negligence on the part of the opposite party. We have considered every aspect of the case and materials on records and we cannot persade ourselves to hold otherwise. In our opinion, the case has been correctly decided and no interference is required. In that view of the matter, the appeal fails and is dismissed on contest.
     
    Appeal dismissed.
            

  • 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.
        

  • Jagdeep Mohanlal Kakadia v Ophthalmics & Drugs India & Ors
    1997(3) CPR (Guj SCDRC)
      
    the complainant an ophthalmic surgeon while performing cataract surgery used a drug Irrisol which is a balanced salt solution to prevent the cornea form becoming dry , during eye surgery . it was alleged that 4 of his patients became blind because of impurities such as detergents contained in Irrisol . This adversely affected his professional practice. According to the complainant about 10 persons in Bhavnagar had lost vision on account of Irrisol . About 800-1000 patients had lost vision in India on account of use of Irrisol of batch  Nos 50, 51, 52
      
    After reading its reasons for condoning the delay in filing complaint the state commission held that the drug Irrisol was purchased for using in course of cataract operations and not for buying and selling nor for financial business and hence it cannot be said that the drug was purchased for commercial purposes. the state commission also held that the pharmaceutical company not only does business but also renders service to the general public and to the medical profession when it manufactures and sells drugs. Therefore manufacture and sale of defective impure or spurious drugs would amount to deficiency in service. So far as the deficiency in service is concerned ,purpose of use if commercial, would not take the complainant out of the definition of the consumer.
      
    Finally the State commission held that the drug Irrisol was defective on the basis of a report of an independent laboratory of USA and other material records. OIt also held the opponent No 1 guilty of unfair trade practice as defined under clause(r) of subsection 1 of section 2 of the CP act.
     
    Lump sum of Rs 15 Lakhs was awarded to the complainant to be paid by Opponent No 1 alone as once the principal is known it would not be proper to hold the agent liable.
      
    As the complainant expressed his desire to use the amount for all those affected by the drug, the state commission ordered handing over the amount  to a body or trust for proper use as may be decided by the commission.
       

  • Miss Gurpreet Kaur (Minor) v. Dr. R.K. Bhutani
    2.1993 (3) CPJ 355: 1993 (3) CPR 409 (NCDRC)
      
    The case put forward by mother of the complainant was that she took her daughter Miss. Gurpreet Kaur (Minor) to the clinic of the opposite party for treatment of some eye disease for the first time on 8.4.1989. Without performing the necessary and preliminary test and without due and proper caution the doctor operated on the left eye of the child, and without proper examination, discharged the patient on the same day. The patient was subsequently taken to his clinic for check-up every morning and evening between 10.4.1989 to 13.4.1989. On 14.4.1989 she was asked to take her to another doctor who demanded RS. 10000/- for another operation on the eye and also stated that he would not take responsibility for the complete cure of the eye. Thereafter the complainant again called on Dr. Bhutani who informed her that he could do nothing further in the matter. Disgusted, she took the child to St. Stephen’s Hospital where the doctors told her that in case immediate removal of the left eye was not done the child could die. Accordingly, the child’s left eye was removed. Keeping in view the permanent loss of the left eye and the physical, mental and social repercussions it had on her future, the complainant prayed for compensation to the tune of Rs.5 lacs. In his written reply, Dr. R.K. Bhutani stated that:
      

    • Child was initially brought to him on 6.3.1989 and not on 8.4.1989 as alleged in the complaint.

    • On 6.3.1989 itself he explained to the mother of the patient, the serious nature of the problem and the left eye was already damaged extremely due to a previous surgery. It was only then that it was disclosed to her that left eye of the child had earlier been operated upon at the Dr. Rajendra Prasad Centre for Ophthalmic Sciences, AIIMS, New Delhi when the child was only ten months old.

    • He got all necessary tests of blood, urine etc. conducted before operating upon the child.

    • After surgery, child was kept under observation for twelve hours and discharged only after complete and thorough examinations.

    • Subsequently, follow-up treatment was given from 10.4.89 onwards.

    • Held:The appeal was dismissed with costs fixed at Rs.7500/- on the following grounds:

    • The complainant had suppressed in her complaint the crucial fact that the child had been operated upon when she was only 10 months old. This was verified through relevant records and examination of the then concerned specialist.

    • Except for filing her own affidavit the complainant has not adduced any expert evidence on her behalf.

    Reports of pre-operative tests falsify her allegations that they were not performed.
      

  • Rohini Devi v. Dr. H.S. Chudawat & Another
    1995(1) CPJ 334 1994(1) CPR 621 (Raj.SCDRC)
      
    It was claimed that the complainant had cataract in her right eye for which she consulted Dr. Chudawat who operated her cataract and implanted an intra-ocular lens on 24.10.94. However, the vision did not return even after 6 months. Dr. Chudawat advised for getting a more costly intra-ocular implant guaranteeing that her vision would become normal. Re-implant was done and separate fees recovered for the same. However, vision still did not improve. Therefore on advice of other doctors her eye was again operated on 7.1.1992 in another hospital and the lens was removed,she had lost sight of her right eye. Dr. Chudawat denied that a guarantee was given regarding return of vision. The possible pros and cons of the operation were explained to her. As the implant did not suit the complainant another lens was implanted by another operation. Thereafter the complainant did not come for follow-up treatment.
      
    The State Commission held that:
      

    • the cataract was operated on 24.10.1990

    • the complainant did not complain of any pain or trouble for 5 months;

    • the complainant agreed to undergo the second operation from the same doctor had there been any negligence during the first operation the patient would not have got the second operation done from the same doctor;

    • From the procedure followed by the doctor, it cannot be inferred that there was any deficiency of care or skill on part of Dr. Chudawat;

    • From the available records it seems that the complainant herself was negligent in taking follow-up treatment.

    Just because she had lost vision of her eye, it would not mean that it was due to the negligence of the doctor.   Hence, the complaint was dismissed.
      

  • Basant Mahadev Samvatsar v. Dr. Sudhir Mahashabde & ors.
    State Consumer Disputes Redressal Commission Madhya Pradesh : Bhopal
      
    Consumer Protection Act, 1986 - Sections 12 and 17 – Medical negligence – Complainant was operated for removal of cataract – Loss of vision of for the alleged negligence on part of doctors – No expert evidence examined by complainant to establish any kind of negligence or deficiency on part of opp. parties - Both surgeons, opp. party, by their affidavits, proved what known complications of nucleous fall or retinal detachment happened – Simply because mishap of nucleous fall or retinal detachment happened, opp. parties could not be held negligent or deficient in service – Complaint was liable to be dismissed – Complaint dismissed.
       

  • Maya Bagchi v. Dr. Samir Sen Gupta & Anr.
    1996(2) CPR 180 WB SCDRC
      
    the complainant was operated for glaucoma right eye. It was alleged that the operation was performed negligently due to which she had to take treatment elsewhere for relief.
      
    The State Commission dismissed the complaint on the basis of (i) the report of L.V. Prasad Eye Institute, Hyderabad, which was filed by the petitioner (complainant) in support of her allegations, on the contrary, supported the opposite party No.1 and (ii) the fact that the complainant rather did not take due care to have the follow up treatment through opposite party No.1 (contributory negligence).
       

  • Asha Rani v. Dr. Rohit Grover & Ors.
    1996(3) CPJ 259 (Chandigarh SCDRC)
     
    the complainant was operated for malignant glaucoma, but her eye-sight did not improve. It was alleged this occurred due to the negligent manner in which the operation was performed and lack of post-operative care.
      
    After considering all material on record the State Commission held that the complainant failed to discharge the heavy onus of establishing negligence or deficiency and failed to examine any other specialist who subsequently treated her. The fact that the doctor refunded the expenses by means of a cheque, is a circumstance which itself does not go against him. Complaint dismissed.
      

  • Ramesh Bhai P. Prajapati & Anr. v. Dr.P.N. Nagpal
    1997(1) CPJ 471(Gujarat SCDRC)
      
    the complainant’s son aged 6 years was operated for post traumatic cataract with secondary infection but he lost his vision in that eye. The complaint came to be dismissed as no convincing material evidence was placed before the State Commission.
      

  • Kailash Kumar Sharma v. Dr. Hari Chavan Mathur
    1997(3) CPJ 41: 1997 (2) CPR 126 (NCDRC)
      
    the complainant was operated upon for cataract and intra-ocular lens (IOL) implant, but there was no restoration of vision in the eye. The Opposite Party submitted that:
     
    –  the complainant was apprised of all surgical options and advantages and risks therein, on which he deliberated for over a fortnight and signed a consent form to have IOL implanted and accepted responsibility for all the benefits and ill-effects;
     
    –  any allergic that may develop following reaction to such imbalance can be countered by drugs, and the patient was already responding to such a cause, he voluntarily discontinued treatment.
     
    The National Commission concurred with the conclusion arrived at by the State Commission that the complainant had failed to discharge the burden of proving negligence of the Opposite Party and dismissed the complaint.
        

  • Bhupendra Nath Das v. Maharaj Ram Krishna Mission Seva Pratisthan & Ors.
    1998(1) CPJ 377:1998 (2) CPJ 390(WB SCDRC)
      
    the complainant was operated for cataract. Subsequently, he developed complications and his eye ball had to be removed at another medical centre.
     
    The State Commission dismissed the case on grounds of :
      
    · the decision of the doctor to operator for cataract had not been challenged;
     
    · the operation was done with reasonable care;
     
    · any after-effect subsequently noticed could be either due to lack of proper care or due to other reasons;
     
    · the allegation that wrong medicines were prescribed has not been testified by expert; and
     
    · production of copies from medical books is not enough to prove an allegation of negligence in such a case.
      

  • Thomarina Marcel D’Cruz v. Management of St.Joseph’s Boys Higher Secondary School & Ors
    1998(1) CPJ 340 (TNSCDRC)
     
    the complainant (represented by his father) was a boarder and injured his right eye due to a fire accident and was taken to a hospital where the whole right eye was removed. It was alleged that the parents were not informed and the operation was done negligently in a hospital which did not have adequate facilities.
      
    The State Commission held that as the doctor told the School authorities that immediately an operation had to be done and thereafter per force they have to give their consent for the same, as parents were staying 140 kms. away and waiting for their arrival would had disastrous results. Hence, there was no deficiency in service on part of the school management. The doctor who operated stated if the operation had not been done it could have been disastrous and he would have been charged with omission, and the hospital was adequately equipped for the operation. Accordingly the complaint was dismissed.
      

  • Jyoti Vivek & Ors. v. Pradeep & Ors.
    1998(1) CPJ 191 1997 (3) CPR 220 (Kerala SCDRC)
      
    the complainant, a welder by profession was hit in his left eye by small iron particle, and went to the 1st opposite party for treatment, but as there was no relief he went to other doctors and finally to the opposite party No.5, who operated after confirming presence of a foreign body on ultra sound. He ultimately lost his vision.
      
    The District Forum had held the opposite parties No.1 and 2 negligent for not advising x-ray and opposite parties No. 2 and 4 for not doing an ultrasound scan.
      
    On appeal, the State Commission held that the complainant presented only after 3 days of injury to opposite No.1 and even then he did not disclose about the injury. He was advised to come for a check-up but did not turn-up and kept changing doctors.
      
    There was no clear evidence that the treatment and procedures adopted by the opposite parties were not proper or they were deficient in any respect. An expert witness who was examined was also not able to bring out anything in his evidence which would establish that there was any deficiency on the part of the opposite parties. Hence, the order passed by the District Forum was set aside and the complaint was dismissed.
      

  • Air Commodore Satya Naryana v. L.V. Prasad Eye Institute
    1998(1) CPJ 110 (AP SCDRC)
      
    the complainant, aged about 75 years was operated for cataract right eye and Intra Ocular Lens (I.O.L.) implanted. He developed severe infection and lost vision of that eye. It was alleged this occurred due to gross negligence and improper application of skills and lack of aseptic conditions.
      
    The State Commission held that the opposite parties were fully qualified to undertake this operation and were having latest equipments, and there is no evidence on record that the premises were not in aseptic conditions. There was a always a risk of infection in case of aged and diabetic patients. The commission refused to apply the principle of resipsaloquitur on the ground that in case of medical treatment inspite of best care a patient may die. But that does not by itself establish negligence. Complaint dismissed.
      

  • Kashi Ram Bhim Rao Kamble v. Dr. Udaya A. Patil & Anr
    1998 (3) CPJ 614 (Mah SCDRC)
       
    More Details       Click Here
           

  • Bhaghat Saran Agarwala & Ors. v. State of Orissa & Ors.
    1993 (2) CPJ 1066 (Ori SCDRC)
      
    a school boy was hit by a pellet from a short-gun in his right eye, leading to a penetrating injury. On being operated by an ophthalmologist it was found that since attempts to remove the pellet had failed and further attempts would instead cause greater harm to the injured eye, the wound was closed with sutures. The opposite party-doctor’s version that there was no negligence was supported by standard text books and expert evidence. No negligence inferred.
        

  • Mrs. Geeta Kumari v. Dr Mrs Anita Ranjan
    1995 (2) CPR 393 (Kerala SCDRC).
      
    The complainant went to the opposite party for fever and redness of the eyes. Medicines and injections were given, but it was alleged that she developed complications due to wrong treatment and drug reaction, and ultimately lost vision of her eyes, on account of development of Steven Johnson Syndrome (SJS).
       
    The State Commission held that there was no evidence to indicate that the patient developed SJS as a result of the medicines and the injections prescribed. The burden is on the complainant to establish that it was on account of the negligence or deficiency in service on the part of the doctor that the complainant had failed to establish this. The complainant also failed to examine any of the doctors who subsequently treated the patient. Complaint dismissed.
          

  • YOGINDER BERI  v. GROVER EYE AND E.N.T HOSPITAL
    III (2001) CPJ 106 UNION TERRITORY CONSUMER DISPUTES REDRESSAL COMMISSION, CHANDIGARH
      
    Consumer Protection Act, 1986 - Section 2(1)(g) – Medical Negligence - Deficiency in Service – Vision lost after cataract operation - Compensation claimed – Complainant abandoned the prescribed treatment without opposite party’s approval - Consulted several eye specialists, underwent laser treatment and other tests which should not have been undertaken – Complainant himself responsible to the condition of eye - Opposite party not in any way medically negligent in providing the treatment – No deficiency in service on behalf of the opposite party proved – Complaint dismissed.
      
    Held : In our considered view, the case law cited by the learned Counsel for the respondent is quite applicable to the facts of the instant case. Resultantly, the complainant had failed to prove any deficiency in service on the part of opposite party No. 2 Dr. Rohit Grover of opposite party No. 1- Grover Eye & ENT Hospital and has further failed to show that Dr. Rohit Grover was in any way medically negligent in providing the treatment prescribed by Dr. Grover and consulted several other eye specialists at Chandigarh and also at A.I.I.M.S. at New Delhi where he underwent laser treatment and other tests which according to Dr. Rohit Grover should not have undertaken so soon after the operation for the cataract in the right eye. In other words, the complainant himself is responsible to the condition of the eye, in which he is placed after the operation. Since the complaint fails against the opposite party Nos. 1 and 2, the question of any liability on the party of opposite party No. 3 - namely, New India Assurance deserves to be dismissed against the opposite parties. The opposite party No 3 is the Insurance Company which has insured the opposite party Nos. 1 & 2    (Para 28)
      
    Result : Complaint dismissed.
      
    ORDER
      
    Mr. Justice K.K.Srivastava, President – The complainant Mr. Yoginder Beri, a resident of House No. 5155/3, Modern Housing Complex, Manimajra, Chandigarh approached opposite party No. 2 Dr. Rohit Grover of Grover Eye & ENT Hospital, Kothi No. 140, Sector 35-A, Chandigarh (opposite party No 1) for treatment of problem in his eyes. The opposite party No. 2 Dr. Rohit Grover after thoroughly checking the eyes of the complainant Mr. Yoginder Beri apprised him that he was having a Cataract in both his eyes and advised him for operation on urgent basis. The operation was to do done for PHACO EMULSIFICATION i.e., by implanting Intra Ocular lens ( for short to be referred as I.O.L.). The complainant had consulted Dr. Rohit Grover on 2nd May, 1997 for finalising the date of operation which was fixed for 27.5.1997 at 6:30 a.m. It has been alleged in the complainant that PHACO type of mode of Cataract operation was the latest of all the available modes and that his vision will be restored to the extent possible with the aid of spectacles. A sum of Rs. 12,500/- was charged by the opposite party No.2 DR Rohit Grover towards the operation charges which also included the costs of lens. The payment was made by the complainant to Dr. Rohit Grover vide Cheque No. 113597 dated 27.5.1997 drawn at State Bank of India. As Scheduled, the operation Mr. Yoginder Beri on 27.5.1997 at 6:30 a.m. for removal of Cataract. Dr. Rohit Grover opposite party No. 2 assured the complainant once again after the operation that the operation eye concerned was successful. However, the Complainant was not feeling comfortable after his right eye opened to light and problem of poor vision persisted. The complainant informed Dr. Rohit Grover opposite party No. 2 about his aforesaid problem. The opposite party No. 2 Dr. Rohit Grover advised rest to the complainant from time to time and continued to assure improvement in the eye with the passage of time.
       
    2.  Mr. Yoginder Beri, the complainants was checked by Dr. Rohit Grover of respondent No. 1 – Hospital on 29.5.1997, 9.6.1997 and 27.6.1997. On 9.6.1977, opposite party No. 2 Dr. Rohit Grover advised the complainant to use spectacles with the following number :
      
             Right eye                                    Left eye

             Dist 4.50/1.00/300                      1.00

             Near 2.50/1.00/30                    +2.50
       
    Even after using the spectacles of the power mentioned above, the complainant Mr. Yoginder beri did not feel comfortable as he was seeing double images of the object. This problem of double image in the vision of the left eye was told to the opposite party No. 2 Dr. Rohit Grover during the check up on 27.6.1997. Dr. Rohit Grover was clearly told that the complainant was having the problem of diabolical images and lack of clarity in the near distance. During the Discussion regarding the non-improvement in the vision without the spectacles as claimed by opposite party No. 2 Dr. Rohit Grover and the reasons for using a lens of 12-D (Diopter) against his nothing in the dairy as 8, the opposite party No. 2 Dr. Rohit Grover Candidly admitted two points which were as under :
      
             (a) that as per his experience he normally makes the adjustment by atleast one or two powers of lens and he also subscribed to his point by showing the records maintained in a diary. In most of the records as shown by the doctor, the complainant observed that in all the cases respondent No. 2 has reduced the power of the lens by one or two points i.e., if the power as per the scanning machine was 17 he used a lens of 15.
      
             (b) Respodent No. 2 also admitted that the lens of 5 diopter is not normally available but can be procured on orders from suppliers at Delhi or from the manufacturing companies.
     
    Dr. Rohit Grover changed the number of the spectacles but the problem in the eyes still continue. The complainant made further queries fromt he opposite party No 2. Dr. Rohit Grover whether any re-operation is possible t rectify this disorder by change of lens implanted by him but Dr. Rohit Grover showed his ignorance and recommended that names of doctors for consultation who according to him were authorities in said kind of surgery in India :
        
    1. Dr. (Prof.) V.K.Dada.                              Head of Deptt., AIIMS, H.P Hospital, New Delhi

    2. Dr. Kumarand Dr. Keiky Mehta.             Colaba Hospital, Bombay.
       
    It is alleged that the complainant Mr. Yoginder Beri went to New Delhi and sought appointment with Dr. V.K. Dada at his residence as he was on leave from hospital. The complainant visited the AIIMS Hospital on 7.7.1997 for consultation and after checkup Dr. Dada recommended yag laser and other tests and asked him to visit again on 10.7.1997. On 10.7.1997, Dr. Dada verbally advised the complainant that the risk of re-operation should not be taken as the chances of its success are almost nil and advised the complainant Mr. Beri that he should remained dependent on the left eye and be cautious in the event of its operation if required at later stage.
       
    3. It has been, contended by the complainant that due to poor vision, he had to seek his premature retirement from the job with the State Bank of India otherwise in the normal course, the complainant was to retire on attaining the superannuation age of 60 years on 30.4.2001. as his date of birth was recorded as 15.4.1941. The complainant, however, sought his premature retirement as aforesaid on 2.6.1998. It is the allegation of the complainant that he suffered permanent disability in his vision resulting in physical and mental harassment due to the deficiency in service on the part of the opposite parties. Mr. Yoginder Beri, the complainant, claimed damages to the extent of Rs. 7 lacs with the following break up :
        

    Sr. No

    Details

      Amount

    1

    Paid to opposite party No.1 towards the operation

      Rs. 12,500.00

    2

    Paid as consultation charges 

      Rs. 75.00

    3

    Loss of salary of two months

      Rs. 37,425.00

    4

    Compensation for permanent disability, physical torture and mental agony to the complainant and his family members

      Rs. 6,50,000.00

      

    Total 

      Rs. 7,00,000.00

    4.  The complainant, however averred that he received a sum of Rs. 10,000/- from his employer i.e., the State Bank of India being the medical reimbursement which is admissible in the service of the complainant. The complainant has assured in para 14 of his complaint to return the said amount of Rs. 10,000/- to his employer, if the same was ordered parties.
       
    5.  The complainant got a legal notice served on 5.4.1998 on opposite party No. 1 and 2 claiming the compensation of Rs. 7,00,000/-. The said legal notice was replied by both the opposite parties vide reply dated 31.5.1998 and denied their liability to pay any amount co compensation. With these allegations, this complaint was filed before this Commission through Counsel Mr. Ashok Gupta, Advocate on 31.3.1999 and amended complaint was claimed against the three opposite parties. The third opposite party being the New India Assurance Company Limited, Sector 17-D, chandigarh, the insurer of opposite parties Nos. 1 and 2.
       
    6.  After serving the notice of the complaint case, a joining reply was filled by the opposite party Nos. 1 and 2. Certain preliminary objections was raised in the reply which states, briefly as under :
        
           (1) The complainant does not disclose the basis of the opinion formed by the complainant for any deficiency in service. No documentary proof has been filed along with the complaint from any specialist showing the treatment given by the opposite parties being not in accordance with the medical science.
         
           (2) There is no basis for claiming compensation for a sum of Rs. 7 lacs. The payment made to the opposite party Nos. 1 and 2 included other charges out of which a sum of Rs. 4,800/- were the operation charges.
         
    7.  It has been alleged that the amount of compensation claimed by the complainant is exorbitant. As a matter of fact the complainant approached Dr. Rohit Grover the answering opposite party No. 2 for removal of Cataract by automated machine called PHACO for short. The complainant was provided intra-ocular lens with phaco emulsification, which is the latest and safest method of Cataract surgery being most popular in America and opposite party No. 2 had been practicing on this line since 1994.
         
    8.  It was specifically averred in para 3 by the opposite parties that the complainant was told that since his right every has been weak since birth and even after operation, there will be certain limitation of vision as compared to normal eye. The complainant was using spectacles before operation of the number about - 10.0 in the right eye which he never used as the eye never used as the eye never functioned well with the glasses. This condition of Anisometropic Amblyopia ( for short hearafter called lazy eye.) It was further contended that the success of the operation was absolute and the complainant was happy after having shown to Professor V.K. Dada of A.I.I.M.S, New Delhi. The complainant had absolutely normal post operative recovery except for the problem of weak right eye as explained above. It was also averred that as a matter of fact the complainant wanted to take leave on medical ground as he wanted to avoid posting out of station and he intended to prolong the medical leave with the help of opposite parties, which was refused and this complaint has been filed only after the said refusal on the part of the opposite party No. 2
       
    9.  In para 4 of the preliminary objections, it was contended that the eye has been traditionally compared to a camera and cinema project or where object of the outside world is focused on the other side of the lens. It is submitted that longer the eye larger will be the size of the image as is clear with the diagrams drawn and attached with this reply. If the object is focused on the retina of the eye and is viewed with internal lens system of the eye then the longer eye needs minus number of the glasses for focusing this image as is common that the minus numbered glasses make the image seen smaller and plus numbered glasses make the image appear bigger.
       
    10.  In the case of the complainant, there were conflicting situations due to inherent inborn condition, which makes it possible to give either near zero spectacles number with greater image size difference of the two eyes as is explained above and to keep the image size similar between the two eyes. It was categorically mentioned in the para aforesaid that the above matters were fully explained to the complainant. The treatment prescribed by the opposite party No. 2 is the correct treatment as per the Specialist’s opinion Dr. V.K.Dada in his book, the extract of which was attached with the reply. In nutshell, the opposite party No. 1 and 2 averred in the last paragraph of para No. 4 of the preliminary objection as under : 
       
       ” Hence the entire treatment given to the complainant by the respondents was in accordance with the latest Medical Science and the complainant has improved from the stage he was before operation”
       
    11.  On merits, the averments made in the complaint were replied to. The relevant paragraphs to which our attention was drawn are paragraphs 9,10,11 and 12 to which references may be made as under : 
       
    12.  In para 9, the averments made in the complaint were denied and it was submitted that it is evident from post operative recovery that spectacles number was prescribed within two weeks of surgery. The difference of spectacle number of the two eyes which has been since childhood was reduced to a great extent. The correct power of lens to be implanted is decided after taking into account both eyes, if the size of both the eyes is similar and in the case of complainant his right eye was bigger than the left eye, hence there was a difference of image.
      
    13.  In Para 10, it was averred after denying the averments made in Para 10 of the complaint that the complainant failed to understand the meaning of diabolical images which he kept on asserting. It is submitted that the double image or diplopia can result if lazy eye is again put to work in late stage of life. The deficiency in power of glasses of the left eye, which was not operated, cannot be commented upon. The use of normal zero powered glasses as suggested to the complainant of his right eye is a very valid suggestion and is being adopted by the complainant.
       
    14.  It was further averred that the complainant started wearing glasses since he used to have double vision. However, he tried to wear the correct powered spectacle for his right eye during young age. If spectacle power of the right eye is to be matched with the left eye, that can be done at this stage but the persistence of double vision is likely to be there on account of image size disparity of two eyes due to difference in size.
      
    15. In para 11, the allegations made in the complaint were denied as incorrect and it was submitted that the complainant cannot read even the top line of the chart before the operation and after operation his vision was bought to 6/18 ( top 4 lines) in the right eye. 
       
    16. In para 12, it was averred, inter alia, as under :
          “ The complainant was explained that spectacles will be needed after surgery with limitation of vision due to inherent condition. The complainant probably has not informed about his right eye being probably has not informed about his right eye being lazy eye since birth and also did not mention that the underwent YAG Lazer Capsulotomy for his right eye at New Delhi on 7th of July, 1997 without the advice of the operative surgeon, which was not required at all and which is not taken atleast for three months after Cataract surgery. The power difference of the two eyes can be undertaken if the image size disparity factor is overlooked.”
      
    17.  The case proceeds ex-parte against the opposite party No. 3 – New India Assurance Company Limited. The parties filed their respective evidence in the shape of their affidavit and were cross-examined by the opposite Counsel. The learned Counsel for the complainant made his submissions before us which were replied to and given submissions were put forth by the learned Counsel for the opposite party No 1 and 2. We were taken through the record of the case in detail which included the reference to the pleadings and to affidavits and cross examinations of the parties. Both the parties relied on the case law regarding the case being brought under the category of medical negligence and consequently the deficiency in service on the part of opposite party No. 2 and the denial of it by the said party.
       
    18.  Before proceeding to consider the case of the complainant regarding deficiency in service on part of opposite party No. 2 and medical negligence on his part as the factor responsible for the persistent trouble in the eye of the complainant Mr. Yoginder Beri, it would be useful to refer to certain salient features of the case, as also to the evidence of the parties. It is undisputed that the complainant Mr. Yoginder beri had problem in his eyes and he consulted opposite party No. 2 Dr. Rohit Grover of the opposite party No. 1 – Grover Eye & ENT Hospital in May, 1997. It is also not disputed that the opposite party No. 2. Dr. Rohit Grover advised surgery in his right eye by imparting of interlocular lens with Phaco emulsification. For the Service rendered by the opposite party No. 2 Dr. Rohit Grover for himself and on behalf of opposite party No. 1 the hospital, the requisite fees was charged from the complainant and the same is not in dispute. It is also not disputed that ultimately the right eye of Mr. Yoginder Beri was operated upon on the date fixed i.e., 27.5.1997 at 6:30 a.m. at hospital (opposite party no 1) by opposite party No 2  Dr. Rohit Grover. It is also not in dispute that the complainant himself went to have consultation from Dr. V.K.Dada, Head of Department, All India Institute of Medical Sciences (A.I.I.M.S), New Delhi and that there he had some treatment of YAG Laser and other tests.
        
    19.  The dispute arises about the treatment by means of operation conducted by the treatment by means of operation conducted by opposite party No. 2 Dr. Rohit Grover on the right eye resulting to the problem in the eye of complainant regarding his seeing double image and incompatibility of images in two eyes i.e. right side operated eye and the left side eye. The main stand of the opposite party No 1 and 2 is that that right eye of the complainant Mr. Yoginder Beri was bigger than the left eye and the result of it was that he was having bigger image of the object in his right eye then the size of the image perceived through the vision in the left eye. According to the averments made in the reply of the opposite party No 1 and 2, this problem which he was having since his birth and childhood. It may also be mentioned that at the time of the initial check up of the eyes of the complainant Mr. Yoginder Beri was told by Dr. Rohit Grover about this abnormality and the fact that there was limited visual gain accepted in the right eye. The perusal of Annexure C-1 (2nd page0 will go to show that an endorsement was made regarding the right eye by Dr. Rohit Grover, which is as follows :
        
    ” Limited Visual gain Rt. Eye explained “
       
    Dr. Rohit Grover filed his affidavit by way of evidence and deposed therein the allegations made in written reply. The affidavit contains almost the same allegations with are mentioned in the written reply, a reference to which has already been made in the earlier part of our judgment.Dr. Rohit Grover was cross-examined by the complainant. In this cross-examination, he stated, inter alia, as under :
       
    ” After examining the complainant, I found that he suffered from Cataract in his both eyes. The right eye had more Cataract than the left eye. I advised surgery for the removal of Cataract in his right eye. The complainant was advised in the alternative two treatments, the one was the surgery for Cataract with stitches. I told the complainant that Phaco is the best available form of surgery regarding the treatment of Cataract. The difference between the two type of surgeries is that the Phaco surgery has the speedial recovery and is also safe than the other form of surgery for removal of Cataract. The document numbered C-2 was prepared in my office regarding the treatment of the complainant. The attached document with C-2 has also been prepared by me. The number of eyes which are mentioned in the attached documents were prescribed after examination of the complainant by me. I have seen the documents C-3, C-4 and C-5 which are dated 27.6.1997, 24.7.1997 and 27.5.1997 respectively and the same have been prepared by me in relation to the treatment of the complainant.
        
    The complainant had come to me with the complainant that he was not comfortable with spectacles containing the number given by me and I after examining him changed the number and gave another prescription for the spectacles. The complainant again came to me with the grievance that he was still not comfortable with his eyes and wanted my opinion to consult some other eye surgeon and have second opinion. I suggested him the name of Dr. Dada, Head of the Department, All India Institute of Medical Sciences ( A.I.I.M.S. )…”
        
    20.  The complainant Mr. Yoginder Beri was cross-examined with reference to his affidavit dated 15.7.1999. The relevant cross-examination of the complainant may be referred to as under :
       
        “…it is correct that I used spectacles even prior to this operation. The right eye was provided with only pain glasses and in the left eye, I possessed power glasses. During the process of operation, which was held on 27.5.1997, there might have been minor difficulty, otherwise, it was O.K. It is correct that after one week, I was provided with power glasses. I am unable to contradict that eye-ball of the right eye, in my case, is bigger as compared to the left eye.
      
         I thereafter went to the All India Institute of Medical Sciences [ A.I.I.M.S.] and consulted Dr. V.K. Dada. Beside, I also went to Government Hospital, Sector 32, General Hospital, Sector 16 and P.G.I at Chandigarh. The doctors in the aforesaid Institute Verbally told me that the lens fixed by Dr. Grover, respondent No. 2 is wrong and that I should contact him once again. However, none of the doctors in the aforesaid Institute gave me written opinion in this regards. I have gone through para No. 4 of affidavit of Dr. Grover dated 23.7.1999 [ Annexure R/3 ] and it is correct.
       
    It is correct that after the cataract operation, with the use of glasses, the vision was raised to 6/18. It is incorrect that before the operation, I could read even first three lines. It is correct that after the operation eye-sight of my right eye improved.
       
    It is correct that at New Delhi, I also had a laser, treatment. It was done in A.I.I.M.S. I don’t know that it was not permissible at least for a period of three months after the cataract operation. I may add that it has no relevance with the merits of the case.”
       
    The complainant Mr. Yoginder Beri in his affidavit reproduced the averments made in Para 10 and averred as point (a) about the adjustment by atleast one or two powers of the lens which is to be implanted in the eye by operation. This has referred to as having been stated  by Dr. Rohit Grover to him. It has already been referred to above that the averments made in Para 10 have been made admitted in the reply of opposite party No. 1 and 2 and the opposite party No. 2 has in his affidavit also denied the same. In cross examination of opposite party No. 2 Dr. Rohit Grover a suggestion was put to him as under :
       
    “…The lens to be replaced in normally taken out on or before the date of operation, before being inserted during the surgery. The type of that looking to the condition of the eye of the complainant, the lens of the strength of 8 or 9 ought to have been used but due to negligence or mistake, the lens of the power of 12 was inserted in his right eye.”
        
    It appears that the word “denial” of the suggestion has been omitted to be mentioned. The statement in the cross-examination is to be read in the light of affidavit filed by the deponent i.e., Dr. Rohit Grover and also that stand taken by him in his reply. Viewed from this angel, this cannot be stated to be the admission of Dr. Rohit Grover at any rate and it was not even argued by the learned Counsel for the complainant.
        
    21.  A careful perusal of the statement of the complainant made in his cross-examination will got to show that he could not contradict the fact that eye ball of his right eye was bigger was  as compared to the left eye. He also admitted as a fact that after the cataract operation, with the use of glasses, his vision was raised to 6/18. He also stated that it was correct that after the operation, eyesight of his right eye improved. The complainant Mr.Yoginder Beri, as per his statement made in cross-examination underwent laser treatment at AIIMS, New Delhi. He was not aware of the fact that it was not permissible at least for the period of three months after the cataract operation. Mr.Yoginder Beri, however, went on to state that it had no relevance with his case. It is also noteworthy that the complainant Mr. Yoginder Beri not only consulted Dr. Dada at AIIMS, New Delhi but also had consultation in various hospital such as Government Hospital, Sector 32, General Hospital, Sector 16 and P.G.I at Chandigarh. The complainant also admitted as a fact that none of the doctors to whom he consulted after his operation gave any opinion in writing about the operation conducted after his operation gave any opinion in writing about the operation conducted by Dr. Rohit Grover being deficient or that Dr. Rohit Grover was medically negligent in performing the operation and in the implantation of intra-ocular lens Now since that complainant himself could  not contradict the fact that his eye ball of the right eye was bigger as compared to the left, the statement of Dr. Rohit Grover in regard to the problems faced by a person having such kind of defected size of eye ball becomes quite relevant. It cannot be said that the power of the lens implanted in the right eye of Mr. Yoginder Beri by Dr. Rohit Grover has not been done or proved by any reliable and cogent evidence of any specialist to be wrong and incorrect and thereby causing the problem said to be post-operative to the said eye of the complainant Mr. Yoginder Beri. At this place, it may be useful to refer though at the cost of repetition that the complainant had a definite improvement, even according to his own statement in the vision in his right eye and he was able to read the top four lines of the chart through he claimed in his cross-examination that even prior to operation, he could read top three lines which fact, he has not specialist. 
        
    Along with his reply, Dr. Rohit Grover has Sketches as Annexure R-1 of [1] Normal eye, [2] Myopia (Long eye) out of focus image, [3] Long Eye – Myopia with low power IOL Focused image of larger size, [4] Long eye with IOL and Minus Powered spectacle lens giving focused image of reduced size ( similar to normal ).
       
    22.  In support of his defence, Dr. Grover attached extracts from the book on IOL and Phacoemulsification Secrets ( Second Edition ) by Dr. V.K.Dada, Professor of Ophthalmology, Dr. Rejendra Prasad Centre of Ophthalmic Sciences, All India Institute of Medical Sciences, New Delhi, India Publishers (P) Ltd., B-23/23B, Ansari Road, Daryaganj, P.B.7193, New Delhi-11002, New Delhi.
       
    23.  Chapter 12 deals with power consideration in IOL and a reference is made to the following question and answers [ marked with red ink by opposite party No. 2 Dr. Rohit Grover ]  :
       
    Q : State some relevant factor concerning intraocular implant power ?
       
    Ans : 1. Patient involved in near work for most of the day may be over corrected in implant to be without glasses for near. Minus spectacles should be given for distance
             2. A preoperative myope should over corrected in implant to be with myopic glasses postoperatively.
             3. Fellow eye with good vision with glasses demands a similar spectacle power in the operated eye to prevent intolerable anisometropia.
             4. Fellow eye with gross diminution of vision is not considered in power calculation of impant.
             5. It is better to impant + 19.00 D Standard powered implant if keratometry and axial length measurement facilities are not available because 80% of the implants are powered between + 18.00 to 20.00 D (Author’s observation).
             6. Chances of having ametropia more than 2.00 D is 5% and more than 5.00 D is less than 1%.
         
    24.  Apart from it, extracts of book o n “Refraction and Clinical Optics” edited by Aran Safir, M.D., Director, Institute of Computer Science, Mount Sinai  School of Medicine of the City, University of New York, New York City,  has been annexed and reference has been made to the underlined portion under the heading “Intraocular Lens/Spectacle Combinations”, which is reproduced as under :
        
    ” Most patients with intraocular lenses do require additional  spectacle correction (27, 28), and the net image magnification is the product of that induced by the intraocular lens and that of the spectacle. Since aniseikonia refers to a difference in the size of the retinal images of the two eyes, it is also necessary to consider what image magnification or minification is induced by the spectacle correction of the phakic eye…”
       
    25. It will be relevant to bear in mind that after getting the right eye operated from opposite party No. 2 Dr. Rohit Grover, the complainant Mr. Yoginder Beri consulted other eye surgeons at different hospitals mentioned above at Chandigarh and also consulted Dr. Dada at A.I.I.M.S., New Delhi and also had laser treatment and other tests which facts were not in the knowledge of Dr. Rohit Grover  and the consultations were not made with the consent of the opposite party No. 2. In other words, the complainant himself decided to have second and subsequent opinion and treatment after his operation aforesaid conducted by Dr. Rohit Grover. It was also significant to note that apart from the statement of the complainant. Mr. Yogendra Beri, there is no other medical evidence of any eye specialist to show that the diagnosis of the ailment in the eyes of the complainant made by the opposite party No. 2. Dr. Rohit Grover was incorrect and faulty and line of treatment prescirbed and given by the opposite party No. 2 was not the correct line of treatment. It cannot thus be held on the basis of the evidence on record that Dr. Rohit Grover on facts, was either negligent in performing the operation and providing treatment to the complainant Mr. Yoginder Beri or was deficient in any way in rendering the services hired by the complainant Mr. Yoginder Beri.
        
    26. Now coming to the case law relied on by the learned Counsel for the respondent reported in III (1997) CPJ 41 (NC)=1997 (2) CPR 126, Kailash Kumar Sharma v. Dr. Hari Charan Mathur, decided by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi (for short hereinafter referred to as the National Commission), on29.5.1997. In this case, the complainant claiming compensation on the ground that loss of vision was because of improper implantation of I.O.L as per opinion of another doctor. The Hon’ble National Commission held that in absence of any evidence that loss of vision after operation for cartaract was due to negligence of doctor, the complainant’s claim for compensation against the doctor was liable to be dismissed. The complainant Kailash Kumar Sharma in the said case had claimed a compensation of Rs. 5 lacs besides a sum of Rs. 17,000/- has been towards the cost of operation. The opposite party i.e. Dr. Hari Charan Mathur while contesting the complaint case made the following submissions :
        
    “(i) The complainant was under his treatment in the hospital since15.9.1980
     (ii) The record in the hospital about the patient on 18.2.1991 showed that his left eye could not improved any further with glasses consequent to which he was advised a cataract operation of that eye.
       
     (iii) The complainant was apprised of all surgical options and advantages and risks therein, on which he deliberated for over a fortnight and confirmed the choice of the operation on 6.3.1991; he signed a consent form whereby he agreed to have an intraocular lens implanted, of his free Will and accepted responsibility for all its benefits and ill-effects.
     (iv) The opposite party has taken all due care in the conduct of the operation., and was not negligent in any way.
     (v) There was always a small chance that the human body might reject the implant of foreign body.
     (vi) Any allergies that may develop following reactions of such implantation can be countered by drugs which was the course adopted by the opposite party in the instant case and while the complainant was already responding to such a course.
     (vii) He did not come for revaluation thus contributing to the damage of his eye.
     (viii) The complainant had been visiting the opposite party for over eleven years because of the former’s faith in the latter.
     (ix) The deficiency, if any, in the quality of the lens cannot be adjudged as the same is implanted in the complainant’s eye.”
       
    27. It would appear from the judgment that the State Commission came to the conclusion that the complainant had failed to forward the burden of negligence on the opposite party and costs of Rs. 1,000/- was awarded to the complainant from the opposite party. The Hon’ble National Commission dealt with the submissions of the appellant in Para 4, which in our opinion is quite relevant to be quoted and it reads as under :
      “4. Aggrieved by this order, the complainant has filed this appeal before us. The appellant due to his inability to attend the requested  the Commission for exemption from personal appearance. In the appeal, the appellant has reiterated his submissions he had made before the State Commission. He has appointed out on that on his not getting his vision after the operation he got his eye examined by eye doctor who told him that he lost his full eye vision because the IOL, implant was not properly done. He has further pleaded that the State Commission has not appreciated his mental, suffering and instead imposed on him cost of Rs. 1000/-.The respondent has pointed out that the appelant’s allegation about improper implantation of IOL based on the opinion of another doctor was a new allegation and that there was no evidence to substantiate the same. We have carefully gone through the records and heard the Counsel for the respondent-opposite party. While the appelant has a real grievance about the loss of vision, he has not produced any document or other eveidence to establish the negligence or deficiency of service on the part of respondent. As observed by the State Commission, the complainant’s quantification of compensation for the alleged negligence has no basis . At the same time, the complaint cannot be dispensed with as frivolous. In the facts and circumstance of the case while we concur with the orders of the state to dismiss the complaint , we are inclined to  set aside that part of the order of the state commission relating to set aside part of the commission relating to the appellant herein to pay costs of Rs 1000/- to the respondent opposite party. The appeal is disposed of as above .No costs.”
        
    28.  In our considered view , the case law cited by the learned counsel for the respondent is quite acceptable to the  facts of the instance case.Resultantly  , the complainant has failed to prove the deficiency in service on the part of the opposite party no2 Dr Rohit Grover of opposite party no1 -Grover Eye & ENT hospital and has further failed to show that Dr Grover was in anyway negligent in providing treatment prescribed by Dr Grover and consulted several other eye specialists at Chandigarh and also at AIIMS at NEw Delhi where he underwent laser treatment and other tests which according to Dr Grover he should not have taken soon after the operation for the cataract in his right eye..In other words the complainant himself is responsible to the condition of the eye , in which he is placed after the operation.Since the complaint fails against opposite party Nos 1 and 2 the question of any liability on part of opposite party no 3 – namely New India Assurance doesnot arise qand the complaint deserves to be dismissed against the opposite parties.The opposite party no3 is the insurance company which has insured the opposite party nos1&2.
      Consequently the complaint lacks merit and is dismissed.However in the circumstances of the case the cost of the complaint shall be borne by the parties themselves.
        
    Copies of the judgement be supplied to the parties free of charges.
         
    Complaint dismissed.
         

  • Ms. Rohini Devi v. Dr. H.S. Chudavat & Anr.
    2001 (3) CPR 172 (NC)

    Consumer Protection Act, 1986 – Sections 12 and 17 – Medical Negligence – Complainant got cataract in right eye operated and Intra Ocular Lens was got implanted – Loss of eye vision – Claim for compensation – Defence plea that complainant failed to come for follow up treatment – Facts and material showing that complainant-appellant was not going for follow up treatment – No challenge to evidence of respondent doctor about procedure followed by him for IOL implantation by any expert evidence – It was not enough for complainant to prove negligence by fact that record IOL implantation had to be removed after 8 months – It was for appellant to prove negligence by examining expert witness – Appellant was rightly held to have failed to establish negligence on part of respondent. (Para 4)

    Result : Appeal dismissed.

    IMPORTANT POINT

    In a case of medical negligence it is for complainant to prove negligence by examinig expert witness.

    ORDER

    B.K. Taimni, Member – This appeal arises out of the orders passed by the State Commission dismissing the complaint of the Appellant.

    2. Brief facts necessary to appreciate the case are that the Appellant approached the Respondent for treatment of cataract in her right eye who after investigation operated her for cataract and implanted Intra Ocular Lens (I.O.L.) on 24-10-1991 so as to enable the appellant without the use of spectacles. The I.O.L. implantation was not successful. Second implantation of I.O.L. was carried out on 1-4-1991. Even this was not to the satisfaction of the appellant, hence they approached the General Hospital who on 7-1-1992 removed the I.O.L., Allegation is that on account of negligence, incompetence on the part of Respondent, the appellant has lost her vision of right eye on account of which the appellant approached the State Commission for awarding relief amounting to Rs. 9.5 lakh against the Respondent Doctor. The State Commission after hearing both the parties found no negligence on the part of the Respondent Doctor and dismissed the complaint. It is against this order that the Appellant/Complainant has filed the appeal.
       
    3. It was argued by the learned Counsel for the Appellant Sh. Taneja that, even though two operations were carried out by the Respondent Doctor, it is at the time of second operation i.e. on 1-4-1991 that the Doctor was negligent resulting in the loss of vision in the right eye. The very fact that the two I.O.L. implantation did not help the patient and the fact that it had to be removed by the General Hospital itself is a proof of medical negligence on the part of the Respondent. He also argued that the main ground of defence of the Respondent that the appellant did not come up for follow up treatment is not sustained by the material on record. According to him after the discharge from the Respondent’s Hospital, the appellant visited for follow up on 19-4-1991 to 22-4-1991, and again on 29-4-1991, 1-5-1991, 6-5-1991, 16-5-1991 to 19-6-1991 and 29-6-1991 in support of which drew our attention to prescriptions. Bill of Respondent No. 1 that the appellant was given proper treatment i.e. operation for cataract and implantation of Intra Ocular Lens for the first time on 24-10-1991, which was successful to the extent that the appellant did not complaint till 22-3-1991 wherein she was advised to have a more expensive implantation of imported lens. This was done on 1-4-1991 and the appellant paid the charges on 1-5-1991, thereafter, the appellant neither came for follow up treatment nor did he hear from her till a legal notice served on him on 5-8-1991 after about four months of second I.O.L. The respondent has fully explained the procedure adopted by the Respondent while carrying out I.O.L. implantation. This procedure has not been assailed at all by any expert. Negligence is not proved against the Respondent Doctor. If there has been any negligence. It is on the part of the Appellant who did not observe the follow up treatment. It is true that Respondent is insured with the Respondent No.2 Company but since there has been no negligence, insurance company cannot be approached for any relief. It was argued by the learned Counsel for Respondent No. 2 that the total insurance cover enjoyed by the Respondent is for Rs. 7.5. lakhand for anyone event it is Rs. 3.5 lakh. They would be willing to honour their part of the commitment but within the terms of the Policy.
        
    4. We have given our careful consideration to the arguments advanced by the learned Counsel for both the parties and material on record. Since there is no dispute on basic facts of the case, we will not like to deal withem at this stage. Main argument of the Appellant is that in view of material on record, it cannot be said that the appellant did not go for follow up treatment after the second implantation of I.O.L. We see on record that there are two set of papers prescription and medical bills on which the appellant relies and wishes us to believe that indeed the patient did present herself for follow up treatment. Prescriptions on follow up relate to the period from 19-4-1991 to 1-5-1991, after this there is no prescription on record. Then we have medical bills for the period 2-5-1991, 22-4-1991, 31-3-1991, 15-5-1991, 19-5-1991, where one can understand medical bills dated 22-4-1991 and 1-5-1991, there is no prescription for the medicine bills correlating to purchases of medicine on 16-5-1991 and 19-5-1991. The emerging status in no way supports the contention of the appellant that she was going for follow up treatment, leaving us with the impression that the appellant did not go for follow up treatment. If the patient/appellant did indeed lose vision immediately or as a result of second I.O.L. implantation on 1-4-1991 then what was the appellant doing till 3-8-1991 – a period of four months i.e. date of legal notice to the appellant. In these circumstances we are left with no choice but to agree with the contention of the Respondent Doctor that the appellant never showed up after 1-5-1991 when she came for settlement of the bill. We also see that in the affidavit of the Respondent, he has given in great deal the procedure followed by him for I.O.L. implantation . This has not been challenged based on any ‘expert’ evidence. It is not enough to state that after eight months of the second operation. I.O.L. implantation had to be removed, thus proving negligence of the Respondent. This could at best be a ground but certainly not a proof of negligence. It was for the appellant to prove negligence by examining expert witness challenging the procedure adopted by him, which a doctor claiming specialisation in this regard would not have done. It was for him to prove by evidence either by oral evidence or through a standard medical literature, either that the Doctor did what he ought to have done, resulting in a situation where the patient finds herself. In this case no such evidence has been led to contradict the evidence adduced by way of evidence, by the Respondent-2, thus, in our view the appellant has failed to prove any negligence on the part of Respondent-2.
       
    5. In our view the Appellant has not been able to prove any point of fact or law for us to interfere in the reasoned order of the State Commission. The appeal is dismissed. No order on costs.
      
    Appeal dismissed.
       

         

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By |2022-07-20T16:43:51+00:00July 20, 2022|Uncategorized|Comments Off on Doctor’s Favour / Ophthalmologist

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