Damyanti Bhatnagar vs Indu Arora

THIS order shall decide the above said two revision petitions. The facts are taken from revision petition No. 3373 of 2009.

THE complainant, Smt. Damyanti Bhatnagar, got operated from the OP/Dr. Indu Arora, for cataract of right eye and suffered injury and loss of her eye. Alleging negligence against the OP, the complainant filed a complaint before the District Forum, Jaipur, which was dismissed on the ground that the complainant was not a consumer of the OP and there was no medical negligence.

WHEREAS the appeal preferred by the complainant before the State Commission, Jaipur was allowed and the State Commission passed the following order: "56. Thus, this Commission is of the view that when the complainant appellant had lost her vision of the right eye while being operated by respondent No. 1 on 28.7.97 and since the complainant appellant is the wife of a retired government servant of Govt. of Rajasthan and now he is a practicing lawyer and looking to the fact that equitable relief is being granted by the Consumer Fora and looking to the fact that the complainant had spent a lot of money in getting further treatment from various hospitals and by loosing the vision of the right eye the complainant appellant would have certainly faced inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life and looking to the fact that even in case of loss of vision of one eye in an accident, the State Insurance Deptt. pays Rs. 1 lac to the victim and looking to the fact that the complainant appellant is facing trial of her complaint since 13.8.01 and taken into consideration all facts and circumstances of the case and taken into consideration that the present case is a peculiar case, therefore, if nominal amount of Rs.50,000/ - is being ordered to be paid by the respondent No. 3 to the complainant appellant as ex -gratia payment that would be just, proper and equitable and that would meet the ends of justice.

For the reasons stated above, the appeal filed by the complainant appellant is dismissed on merits against respondents. However, on ground of humanitarian and equitable consideration as stated above, respondent No. 3 State of Rajasthan through the Secretary, Medical and Health Deptt. Secretariat, Jaipur is directed to pay a sum of Rs.50,000/ - to the complainant appellant as ex -gratia payment within two months from today failing which the respondent No. 3 would pay interest @9% per annum on the above amount from today. It is made clear that this case would not be treated as precedent for other cases."

Aggrieved by the impugned order of the State Commission, the parties filed two separate revision petitions, one revision i.e. R. P. No. 3373 of 2009, by complainant for enhancement of compensation whereas another revision petition i.e. R.P. No. 4260 of 2009, filed by OPs 1 and 2 for dismissal of the complaint. The complainant has filed written arguments, but did not appear before this commission. The counsel for both the OPs are present alongwith Dr. Indu Arora, the OP during the arguments. Counsel for OP 1 submitted that expulsive hemorrhage is a dreaded complication. Dr. Indu Arora explained the facts and operative procedure. The OP performed operation in SMS Medical College and Hospital, which was under a State Government during her employment. The patient suffered expulsive choroidal Hemorrhage, which was not due to any negligence during cataract surgery. The expulsive hemorrhage is one of the most frightening complication of cataract surgery. The expulsive Hemorrhage is explained in Annx. R/1/1, the literature on "Cataract Surgery and its complications"as here under "one of the most frightening and serious complications of Cataract Surgery is the sudden occurrence of an expulsive Sub Corodial hemorrhage referred to this as the BETE NOIRE OF THE OPHTHALMIC Surgeon Fortunately, it is rare and would be witnessed only a few times by ophthalmic surgeon. She further explained about the sudden occurrence of expulsive hemorrhage in the patient''s right eye and the steps taken by her to arrest the hemorrhage by doing proper vitrectomy. Counsel for the State Govt OP -2 raised the objection that, the order of State Commission is not sustainable because there is no provision for payment of ex -gratia amount to such patient, who suffered by alleged negligence during treatment at Government Hospitals.

WE have perused the affidavit evidence, of the parties filed before the lower fora, and relevant medical literature on the subject of expulsive hemorrhage. The medical record from SMS Hospital revealed that, the preoperative investigations were done by OP -1 and thereafter only the patient was taken for cataract surgery. Expulsive Hemorrhage was unforeseen and very rare complication of the cataract surgery for which the patient was treated immediately by the OP -1. Even the patient visited several other doctors like Prof G.L.Verma, Dr. Nagpal at Ahmedabad, who also opined about such dreaded complication. There is nothing on record that Dr. Nagpal opined any negligence committed by the OP/doctor. Therefore, we are of the considered view that Dr. Indu Arora was not negligent during the operation. Also, we don''t find any provision from the State Govt about ex -gratia award as granted by the State Commission. Therefore, we allow the revision petition filed by the OPs and dismiss the revision petition filed by the complainant and consequently, the complaint is hereby dismissed. Parties to bear their own costs.