Darshan Lal Arora vs Vivek Pal

SHRI Darshan Lal Arora, the Complainant, on 11.7.2000, under went a cataract surgery and lens implantation in the right eye from the OP -Dr. Vivek Pal. On the next day, the Assistant of O.P., removed the bandage from the right eye Thereafter, on 15.7.2000, the Complainant had unbearable pain in the right eye, for which Complainant called the O.P., who advised to take any pain killer and if the pain persists to, contact him, on 17.7.2000. Accordingly, the Complainant visited the O.P., on 17.7.2000, and again, on 20.7.2000, which did not yield any improvement in the vision and there was a persistent pain in Right eye. Subsequently, the O.P. operated again on the Complainant''s right eye, on 25.7.2000 and again operated for Glaucoma, on 9.8.2000. Thereafter, the Complainant''s son took him to Australia, where he was examined by various doctors. One Dr. Michael, GI Brantly, examined the Complainant, on 30.8.2000, and gave the opinion in a letter. On coming back to India, the Complainant approached the O.P. again, but, the O.P. expressed his helplessness, as nothing could be done anymore and the right eye would remain, as it is. The O.P. further referred the Complainant to Dr. Shroff, who suggested implanting contact lenses to restore vision in the right eye, but it also failed. The Complainant again went to Australia on 8.10.2002, where Dr. Jayachandra examined him and opined that it is a clear case of negligence on the part of the O.P. and issued such letter. The Complainant, thereafter, came back to India and again approached the O.P. doctor, for his examination on 19.8.2002, and showed him the reports issued by Australian Doctor, Dr. Jayachandra, and then the Complainant filed a complaint before Delhi Medical Council (DMC), against O.P., but the DMC exonerated the OP. Hence, alleging deficiency in service by O.P., the Complainant filed a complaint before the Delhi Consumer Disputes Redressal Commission, Delhi for compensation of Rs. 1.80 lakh towards the entire treatment, Rs. 2.30 lakh towards the travelling expenses to and fro India -Australia and Rs. 2 lakh towards the harassment, along with interest @ 18% p.a. + the litigations Cost. The District Forum allowed the complaint, directing the O.P. to pay a sum of Rs. 2,00,000 as compensation and Rs. 10,000 as the litigation charges.

AGGRIEVED by the order of District Forum, the O.P. doctor preferred an appeal, FA 197/2008 before the State Commission. The State Commission allowed the appeal and dismissed the complaint.

HENCE , aggrieved against the order of State Commission, this revision petition has been filed.

COUNSEL for both the parties filed their written arguments. We have perused the evidence on record, the hospital records and several documents, including the letters from the two Australian doctors. In our observation, we find that on 22.9.2004, the District Forum referred this case for Expert Opinion from Dr. B. Ghosh, Professor and HOD (Ophthalmology), Guru Nanak Eye Centre, New Delhi. As per the Expert Opinion, it was opined that it was due to complication of IOL surgery rather than negligence. Dr. Ghosh submitted his report while considering the views submitted by Dr. Michael G. Bradley and that of Dr. Jayachandra on whose opinions the allegations of negligence against the O.P. Doctor are based.

ON perusal of letters of Dr. Michael G. Bradley of North Shore Eye Centre, NSW dated 31.5.2001 and another letter from Dr. Jayachandra, Ophthalmic Surgeon from Penritrh, Australia revealed that the complainant suffered from bacterial keratitis and endophthalmitis. Both the letters did not mention anything about the negligence caused by OP. Thus, merely producing of such like letters do not carry any weight to establish negligence by OP.

FURTHER , we have perused the order dated 23.4.2003 passed by the Delhi Medical Council in the complaint filed by the Complainant. The relevant paragraph is reproduced as follows: The Council examined the Complainant, Dr. Vivek Pal and documents on record. It is inferred that the Complainant developed certain post -operative complications after surgery, which are a possibility after such a surgery and not due to any act of omission or commission, by Dr. Vivek Pal. The Complainant was informed about the occurrence of the complications. Dr. Vivek Pal has conducted himself in a manner expected from a reasonable and prudent Eye Specialist. No negligence on the part of Dr. Vivek Pal is established, hence, the claim for compensation sought by Shri Darshan Lal Arora stands dismissed. The complainant relied upon few judgments of Hon''ble Supreme Court and of this Commission viz.: 1. Jawaharlal Institute of Post Graduate Medical Education and Research (Jipmer) and Anr. v. S. Varrery Seinivas, III (2012) CPJ 467 (NC).

M/s. Spring Meadows Hospital and Anr. v. Harjol Ahluwalia Through K.S. Ahluwalia and Anr., (1998) SLT 684 : 1 (1998) CPJ 1 (SC) : AIR 1998 (SC) 1801.

Vinod Prasad Nautiyal v. Savitri Uniyal and Ors., (2011) CPJ 289 (NC).

H.S. Sharma v. Indraprastha Apollo Hospital and Anr., (2007) CPJ 21 (NC).

Mumtaj Ansari v. Zubeda, I (2005) CPJ 673.

Dr. Shyam Kumar v. Rameshbhai Harmanbhai Kachhiya, (2006) CPJ 16 (NC).

ALSO , the Respondent relied upon few judgments, namely: (i) (2009) CPJ 32 (SC) : II (2009) SLT 20 : 157 (2009) DLT 391 (SC) : (2009) 3 SCC 1, Martin F. D''souza v. Mohd. Ishfaq. (ii) (2009) 7 SCC 130, Poonam Verma v. Dr. Ashwin Patel. (iii) Ishwar Das Lekh Raj Ram Chander v. Dr. P.J. Buch and Anr., III (1995) CPJ 549. (iv) Kanaiya Prasad Mishra v. Dr. (Mrs.) Tanuwati G. Shah: (1995) 2 CPJ 159.

IN our opinion application of Bolam''s test is necessary and the Hon''ble Supreme Court, inter alia, observed in Martin D''souza''s case as under - - ''Judges are not experts in medical science, rather they are laymen'' ... ''Indiscriminate proceedings and decisions against doctors are counterproductive and serve society no good'' ... ''Simply because a patient has not favourably responded to a treatment given by a doctor or a surgeon has failed, the doctor cannot be straightaway held liable for medical negligence by applying principles of Res Ipsa Locquitor'' ... ''The law is a watchdog and not a blood -hound, and so long as doctors do their duty with reasonable care they will not be held liable even if treatment is unsuccessful''.

The allegations of complainant that O.P. did not take the necessary precautions before surgery, like measurement of lens, ultra sound of eyes, etc. are unsustainable, because the medical documents on file show that various kinds of tests were performed, prior to surgery and that he was given good post -operative care and was regularly seen by the OP. The power of his lens was + 21.5 DP/C IOL, which was implanted by Phacoemulsification technique, under Topical Anesthesia. This Commission has taken a similar view, in the case of Poonam Verma v. Dr. Ashwin Patel (supra), where it was held - - A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in particular act.

CONSIDERING the entirety of the above discussions, we do not find any negligence committed by the O.P., in performing cataract operation and in taking due care. Therefore, we do not find any need to interfere with the order passed by the State Commission. Accordingly, the revision petition is dismissed. No order as to costs.