GHEESA RAM SAINI vs A.S. MALHOTRA

THIS is complainant''s appeal from the order of the Distt. Forum II, Jaipur dated 28.1.1997 dismissing his Complaint No. 241/96.

THE relevant facts are that in connection with the eye-trouble of his daughter, Miss Veena, aged about 14-15 years, the appellant consulted Dr. P.C. Sharma, eye-specialist at Bharatpur, who diagnosed "Epiphora" in the right eye of the girl and advised the appellant to take her to Jaipur for treatment. On 11.2.1995 the appellant consulted Dr. A.S. Malhotra, respondent No. 1 at his residence and allegedly paid Rs. 100/- to him towards his consultation fees. Dr. Malhotra examined patient''s right eye and prescribed certain medicines for three days and advised the appellant to come to S.M.S. Hospital on 13.2.1995 along with the patient. On 13.2.1995 Dr. Malhotra admitted Miss Veena to his ward in S.M.S. Hospital, Jaipur for operation on 21.2.1995. On 21.2.1995 Miss Veena was operated upon her left eye as there was infection in her right eye and it was a case of bilateral Epiphora. She was operated upon for her right eye on 27.2.1995. She was discharged from the hospital on 3.3.1995 as cured with advice to appear on 13.3.1995 for follow up, syringing, etc. The grievance of the appellant, however, was that Dr. A.S. Malhotra, respondent No. 1, had wrongly operated upon the left eye of Miss Veena, instead of her right eye and that even after operating her both the eyes, the problem of watering from and pain in both the eyes subsisted. He, therefore, alleged medical negligence, and consequently deficiency in service, on the part of Dr. Malhotra. For redressal of his grievances the appellant lodged a First Information Report with Police Station Moti Dungir, Jaipur and also complaint to the higher authorities of S.M.S. Hospital, Jaipur, against the respondent Dr. Malhotra. On investigation of and inquiry into his complaints by the authorities concerned, no fault or negligence on the part of Dr. Malhotra, respondent No. 1, was found either by the police or by the hospital authorities. Dissatisfied with the opinions of the concerned police officers and the doctors, the appellant filed his complaint before the Distt. Forum, which, as stated above, found no merits in it and dismissed the same as such.

Mr. P.K. Khaitan, the learned Counsel for the appellant though vehemently tried to establish a case of medical negligence on the part of Dr. Malhotra yet on hearing the learned Counsel for the other side and on careful examination of the material on record, we are satisfied that there was no iota of evidence on record to hold that Dr. Malhotra or, for the matter, any other doctor of respondent No. 2, rendered deficient services to Miss Veena in the treatment of her eyes.

PROCEEDING on the assumptions that Dr. Malhotra had charged a sum of Rs. 100/- from the appellant as his consultation fees and thus contract of service had come into existence between him and the appellant, we find that it is an undisputed position that in the matter of operation of the eyes of Miss Veena Dr. Malhotra had not associated himself and the operation was performed by subordinate doctors of his unit. With this factual position Dr. Malhotra cannot be said to have been negligent in performing the operation on the eyes of Miss Veena and to have rendered deficient services to her. Assuming again that for the negligent act of his subordinates Dr. Malhotra may be held vicariously by liable-a proposition which is difficult to be approved of-in the cases of contracts of personal service-then again we are unable to hold that the subordinate doctors had in any manner committed negligence in operating both the eyes of Miss Veena and thus rendered deficient services to her.

WHAT the Distt. Forum has found in this case and what we find fully established on record by expert evidence is that on the two complaints lodged by the appellant with the hospital authorities and simultaneously with the police authorities, thorough investigation and inquiry into the operation performed on the eyes of the girl were made by two different bodies of doctors and both of them opined that there was absolutely no negligence on the part of the doctors who performed operation on the eyes of Miss Veena. Under the orders of the Principal and Controller dated 20.3.1995 a Committee consisting of Dr. V.S. Baldwa, Medical Superintendent as Chairman Dr. P.K. Wanchoo, Prof. and Head, Deptt. of Surgery and Dr. S.R. Dharkar, Prof. and Head, Deptt. of Neurosurgery as Members was constituted to enquire into the complaint of the appellant pertaining to the alleged operation of the wrong eye of Miss Veena. After having heard the complainant and Dr. A.S. Malhotra (respondent No. 1), Dr. Yogesh Sharma, Dr. Mukesh Jain and Dr. Vinod Jain, Assistant Professor in the Deptt. of Ophthalmology of S.M.S. Medical College and Hospital, Jaipur and on critical examination of the record, prepared in the course of treatment of Miss Veena and performing operation on both of her eyes, the Committee accepted respondent''s version that the disease of Miss Veena was bilateral and in addition there was contact dermatitis and lid infection in her right eye, that there was partial blockage in Naso-Lacrimal Duct in left-eye and full blockage in right eye. The Committee was of the opinion that in view of lesser desease and absence of infection with consequent better prognosis, the decision of Dr. Vinod jain to operate on left eye first and to do Dacro-Cysto-Rhinostomy on 21.2.1995 and then after disappearance or control of infection in the right the decision of Dr. Yogesh Shukla to operate her right eye also was correct and in the interest of the patient. Similar opinion was expressed by the Board of Doctors, comprising Dr. S.K. Pathak, Chairman, Dr. Subhash Sharma and Dr. Kishore Kumar Ophthalmologist members constituted on 24.3.1995 by the Superintendent, S.M.S. Hospital, Jaipur on the request of Station House Officer (SHO) P.S. Moti Dungri, Jaipur. After having examined the cured eyes of the patient and on study of the relevant record, this Board opined- (1) that Rt. eye had epiphora with contact dermatitis, left eye also had mild epiphora and since the Rt. eye was having epiphora and dermatitis which might have been treated for contact dermatitis, the operation on left eye was right, (2) that since the patient was admitted for epiphora in both eyes, the decision of the consultant doctors to treat the two eyes in the manner, they did, was correct, (3) that Rt. eye of Miss Veena was investigated in detail as there was initial complaint in that eye and all the procedure in that behalf was correctly followed by the individual doctors, and (4) that on examination of the Rt. eye by the members of the Board, no evident abnormality and no epiphora were noticed.

THE Board also observed that although on the request of the appellant syringing in the eyes of Miss Veena was decided to be done on a holiday (Sunday), but the patient did not turn up.

THE facts found by the Committee and the Board of doctors make their opinions quite reliable and trustworthy. THEre is no rebuttal to their opinions. This Commission cannot constitute itself into an expert body and contradict statement of doctors constituting the Committee and the Board, who all were highly qualified and experienced persons in the subject on hand. Vide Dr. Har Kanwaljit Singh Saini v. Gurbus Singh and Others, I (2003) CPJ 153 (NC). Under such circumstances and on such material before it the Distt. Forum was fully justified in finding no medical negligence even on the part of those doctors, who had operated on the eyes of Miss Veena, what to speak of Dr. Malhotra (respondent No. 1) who himself was no party to such operation. THE complaint of the appellant has, therefore, been rightly dismissed for sound and valid reasons. In the result this appeal is found devoid of any force and dismissed as such with no orders as to costs. Appeal dismissed.