DR. RAJAGOPALAN NAIR vs K. KESAVAN

The Complainant, K. Kesavan, (patient) during his work of rethreading tyre, the dust particles entered in his eyes on 09.08.2003. He contacted Dr. Rajagopalan Nair, the Opposite Party on the next day, who after examination, advised medicines but there was no relief for 2 weeks, the pain went on increasing. Again, the Complainant consulted the OP, same medicines were prescribed. Hence, on 19.08.2003 the Complainant approached Aravind Eye Hospital, Coimbatore, which stopped the use of medicines prescribed by the OP. The doctors at Aravind Eye Hospital opined that, the condition of the eye became worst due to non- removal of foreign particle by the OP. It was removed at Aravind Eye Hospital, but there was no improvement, the infection became severe. Hence, evisceration (removal) of the infected Right eye was done on 26.08.2003. Hence, due to negligence of the OP, the Complainant lost his right eye. The Complainant filed a consumer complaint before the District Forum and prayed for a compensation of Rs.3,00,000/-.

The District Forum dismissed the Complaint, hence the complainant preferred an appeal No. 268/2006 before the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (herein in short "State Commission"). The State Commission allowed

the first appeal and directed the OP to pay Rs.1,00,000/- as a compensation and Rs.10,000/- as costs.

Aggrieved by the order of the State Commission the OP filed this Revision Petition.

We have heard the parties and perused the medical records on the file. The Counsel for the Complainant raised objection on the point of limitation, that the State Commission passed an Ex-parte order; therefore, the OP has no right to file Revision Petition in this Commission. He has relied upon the judgment of Hon''ble Supreme Court in this regard, titled Mahesh Yadav And Another vs. Rajeshwar Singh and Others, (2009) 2 Supreme Court Cases 2005. Further, the counsel brought our attention to this Commission''s order dated 09.08.2011, the relevant para is reproduced as below: Heard counsel for the parties on delay in filing the revision which is 28 days. Delay condoned subject to payment of Rs.5,000/- by the Petitioner to the Respondent within a period of 6 weeks and adjustment of cost of Rs.2,500/- ordered to be paid on 11.04.2011 if the same is not paid. If the costs are not paid within 6 weeks, the revision shall stand dismissed without reference to this Commission. The Petitioner shall file the receipt of payment in the Registry within a period of 6 weeks.

The counsel further argued that there was clear cut negligence in treating the patient. The OP should have removed the foreign particle from patient''s right eye during initial examination only, but he failed to do it. Hence, it was deficiency in service, due to which the Complainant has to sacrifice his right eye. The Counsel for the OP Ms. Shrinjan Khosla vehemently argued that, Dr. Rajgopalan (OP) is a highly experienced doctor and in the ophthalmic practice, for the last 30 years. The patient already suffered corneal ulcer and total hypopion. Therefore, the OP treated the patient with higher antibiotics. This is not the case of Res Ipso Loquitor. She relied upon the judgment of this Commission in Consumer Complaint 36 of 2000 titled, Sarita vs. Union of India IV (2014) CPJ 308 (NC), wherein it was observed as under:-

We cannot apply the doctrine of res ipsa loquitor in this case, as simply because a patient has not favourably responded to a treatment given by OP-5. We cannot straightaway hold OP-5 liable for medical negligence. The Supreme Court in Jacob Mathews Case:

"A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the Complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform aq successful operation and a quivering physician cannot administer the end-dose of medicine to his patient."

There is a delay of 28 days in filing this Revision Petition. We condone this delay after perusing the reasons therein in the application for condonation of delay. Also, we would like to review this commission''s order dated 09.08.2011, because the OP paid Rs.5000/- by demand draft to complainant on 17.05.2012, no doubt it was delayed payment, but on such mere technical ground, we are not inclined to dismiss this Revision Petition. Therefore, adopting the principles of natural justice, we proceed further with this Revision Petition, on merits.

We have perused the evidence, medical records and medical literature available on the file. It reveals that the OP treated the patient with full course, local and systemic antibiotics, and also advised for pain killers. The medical report dated 14.11.2003 and the clinical findings of Aravind Eye Hospital do not support the contention of the Complainant. The record clearly shows that, the Complainant was suffering from pain, redness, watering and discharge and reduction in the vision of right eye for 16 days prior to 19.08.2003. (Page Colly 13) The microscopy of corneal scraping revealed fungal filaments and culture showed growth of aspergilosis flavus species. In spite of initial treatment with topical and systematic antifungal agents and antibiotics, the abscess continued to progress. Thus, it resulted in Pan-Ophthalmitis of the right eye and he was advised evisceration in the right eye which, he underwent, on 26.08.2003. Therefore, considering the entire evidence, medical record and related literatures on corneal ulcers, Fungal Karatitis, we do not find any negligence committed by the OP during the diagnosis and treatment. Accordingly, the order of State Commission is set aside and we restore the order of the District Forum while allowing this Revision Petition.