JALLELLA VENKATA SUBBAMMA vs D M ANJANEYULU

-THIS is an appeal filed by the appellant/complainant under Section 15 of the Consumer Protection Act,1986 to set aside the dismissal order passed by the District Forum, Prakasam Dist. at Ongole in C. D. No. 192/2003 dated 20. 12. 2004. The appellant/complainant filed appeal seeking relief against respondent No. 1 only. The respondent No. 2 is only a formal party. No relief sought against the respondent No. 2

THE appellant herein is the complainant before the District Forum. She filed complaint under Section 12 of the Consumer Protection Act,1986 to direct the 1st opposite party to pay Rs. 2,25,000 for expenditure incurred by her with interest and to pay compensation of Rs. 5 lakh and also to award costs. The case of the complainant is as follows: the complainant approached the 1st opposite party with eye problem on 25. 3. 2002 and the 1st opposite party issued O. P. No. K. 555 receiving Rs. 100 and initially examined and informed that she is having cataract in right eye and she has to undergo for operation immediately. The 1st opp. party conducted the operation on 29. 3. 2002 and discharged on the following day after 24 hours and informed implantation of I. O. L. is made and issued a card to that effect and received Rs. 4,500 towards fees. . Within one week after operation the complainant developed itching and unknown inconvenience in her operated eye. The complainant went to the opposite party No. 1 and expressed her problem. The 1st opposite party told that it is a minor problem and on 5. 5. 2002 the 1st opposite party referred the complainant to go L. V. Prasad Eye Hospital, Hyderabad. i. e. 2nd opposite party. On the night of 5. 5. 2002 the complainant went to L. V. Prasad Eye Hospital , Hyderabad and got her eye tarter. The complainant went to opposite party No. 2 hospital on number of occasions for about 16 times As the operation conducted by the 1st opp. party was not successful the complainant was operated again on 14. 5. 2002 and on 13. 9. 2002 at 2nd opposite party hospital at Hyderabad. The 1st opp. party was negligent and inefficient in conducting operation her visual and acetime was confining finger at 2 mtr. in right eye. Examination of right eye rechecked that irregular deep anti chamber with operation chun of I. O. L noted. Due to the negligence of the 1st opp. party , even after three operations the complainant could not restore her visuals and on the other hand any object in her right eye beyond 1 feet she cannot see. Because of the failure of operation conducted by the 1st opposite party the complainant lost her vision barring becoming blind. The complainant got issued legal notice on 17. 7. 2003 to the 1st opp. party asking to pay the compensation for which the 1st opp. party gave reply personally on 24. 7. 2003 to the complainant''s Counsel and also issued reply notice through his Counsel on 29. 7. 2003. The 2nd opposite party is added as proforma party to speak his receiving reference letter, conducting operation and their record. The complainant approached the District Forum to direct the 1st opp. party to pay Rs. 2,25,000 for expenditure with interest and to pay compensation of Rs. 5 lakh and also to award costs.

The 1st opp. party filed counter contending that the allegations made in the complaint are false. The opp. party No. 1 stated that on examination of the Fundus of both eyes the retinal degeneration is detected and with the consent of the complainant and her husband the opp. party conducted the cataract surgery with IOL implantation successfully on the left eye on 29. 3. 2001 and on account of retinal degeneration and weakness she was strictly advised to take complete rest without subjecting to strain and stress to her left eye. She was also asked to have regular weekly check up without fail. And thereafter she got the improved good vision of 6/9 in her left eye. Though the complainant was advised to undergo treatment for the cataract in her right eye, within 6 months after the surgery on the left eye , after thorough examination of her right eye and though she was explained the prognosis of her disease of senile cataract in her right eye with retinal degeneration, she neglected the said advice and did not approach the 1st opp. party till about an year. On 25. 3. 2002 the complainant came to the 1st opp. party to get her right eye examined and the 1st opp. party examined her right eye thoroughly and explained about the existing previous disease and its ongoing complications. After taking consent of the complainant and her husband the cataract surgery with IOL implantation was conducted successfully on 29. 3. 2002. Before the operation her vision in her right eye is 5/60 and pinhole reading is 6/36 and her vision in the left eye is 6/9. At the time of the discharge her right eye was good with no complications. The complainant was advised to get re-examined every week regularly because of the pre-existing retinal degeneration. The complainant came to the hospital only on 11. 4. 2002. The 1st opposite party had instructed her in the first visit and strictly advised to adhere to complete rest or else she was again appraise about the possible imminent complications due to retinal degeneration but she again neglected the said instructions and did not take them seriously. Since there are no proper facilities at the hospital of the 1st opp. party or in any other hospital at Ongole to tackle the said disease she was advised to go to the hospital which is having retinal surgical facilities at Hyderabad, Chennai, Madurai, etc. and the complainant opted for L. V. Prasad Eye Institute, Hyderabad. The complaint is totally misconceived one and is intentionally filed to extract undue money from the 1st opposite party. The opposite party stated that there is no deficiency in service on their part and prayed to dismiss the complaint with costs.

THE 2nd opp. party filed counter contending that the Fundus examination of right eye showed superior retinal detachment with a lattice and a horse shoe tear andin left eye lattice degeneration with atrophic hole were seen superiorly and inferiorly and based on the said clinical findings diagnosed the complainant to be having pseudophakia in both eyes , partial rhegmatogenous retinal detachment in right eye and lattice degeneration with break in both eyes. And she underwent barrage photocoagulation in left eye on the same day and she was advised to undergo scleral buckling + Parsplana Vitrectomy , Endolaser and fluid gas exchange with guarded visual prognosis. She underwent Scleral buckling under local anaesthesia on 14th May, 2002. The complainant underwent parsplana vitrectomy, membrane peeling endolaser and silicone oil injection in the right eye on the same day. And silicone oil removal with membrane peeling was done under local anaesthesia on 13. 9. 2002. Post operatively the complainant was doing well. Fundus examination revealed attached retina with good buckle effect. The opp. party asked the complainant to come for follow up after 6 months but she did not visit. The opp. party No. 2 stated that as stated by the complainant herself it has been added as the temporary party and no relief has been claimed as against it. The opp. party No. 2 prayed to dismiss the complaint against them. The complainant filed documents Exs. A1 to A10. The complainant was examined as PW. 1. Exs. B1 and B2 documents are filed on behalf of the opp. party No. 1 and he was examined as RW. 1. Based on the evidence adduced and pleadings, the District Forum dismissed the complaint.

AGGRIEVED by the dismissal order of the District Forum the complainant preferred this appeal contending that the District Forum has not properly appreciated the evidence on record and dismissed the complaint on the ground that the complainant has failed to adduce any expert evidence. The appellant submits that she has filed application for constituting a medical team of experts consisting of ophthalmic surgeons to examine her eyes and the burden lies on the opp. party to prove that there is no negligence on their part hence no expert opinion is necessary. The Dist. Forum has not properly appreciated the fact that the 1st opp. party himself admitted in his deposition that he is not having any equipment to conduct the surgery connecting to retina which is clear and categorical terms establishes the deficiency of service on the part of the opp. party No. 1. The District Forum did not appreciate the fact that the 2nd opp. party diagnosed pseudophakia, partial rhegmatogenous retinal detachment etc. will only arise when the prior surgery is defect one. The Dist. Forum failed to appreciate the fact that the conduct of surgery by the 2nd opp. party itself speaks that it was due to defect in prior surgery by the opp. party No. 1. The finding of the Dist. Forum is based on the self drawn conclusion and further is based on the probabilities. The appellant prayed to set aside the order of the District Forum and allow the appeal. There is no dispute that the complainant approached the 1st opposite party with eye problem and the 1st opposite party informed that she is having cataract in right eye and she has to undergo operation immediately. The 1st opp. party conducted the operation on 29. 3. 2002 and discharged on the following day after 24 hours and informed implantation of I. O. L. is made and issued a card to that effect and charged Rs. 4,500 within one week after operation the complainant developed itching and unknown inconvenience in her operated eye. The complainant went to the opp. party No. 1 and expressed her problem and the 1st opp. party told that it is a minor problem and on 5. 5. 2002 the 1st opp. party referred the complainant to go to L. V. Prasad Eye Hospital, Hyderabad. i. e. 2nd opp. party. On the night of 5. 5. 2002 the complainant went to L. V. Prasad Eye Hospital, Hyderabad and got her eye tarter. The complainant went to opp. party No. 2 hospital on number of occasions for about 16 times As the operation conducted by the 1st opp. party was not successful the complainant was operated again on 14. 5. 2002 and on 13. 9. 2002 at 2nd opp. party hospital. Even after conducting 3 operations the complainant could not restore the visuals and he has incurred an expenditure of Rs. 2,25,000. The appellant/complainant submits that she filed application for constituting a medical team of experts consisting of ophthalmic surgeons to examine her eyes and the Dist. Forum has not appointed expert team and the burden lies on the opp. party to prove that there was no medical negligence on their part. The burden of proof is concerned it lies on the complainant to prove the medical negligence. The complainant should have taken steps to examine the expert doctors, but she has only filed a petition to appoint experts committee. There is no doubt that the complainant has taken a specific plea in the legal notice, complaint, evidence affidavit with regard to the medical negligence on the part of the opposite party No. 1 in conducting the operation on her right eye and her eye sight was affected. The burden of proof lies on the complainant to examine any expert doctor and adduce her evidence when she has complained that there was no proper cataract surgery conducted by the opposite party No. 1 and on account of that he suffered defective vision. There is no dispute that the opposite party No. 1 has referred the complainant to opposite party No. 2 for expert treatment. The expert doctor of opp. party No. 2 hospital also gave treatment to the complainant. Ex. A4 is the reference letter of opp. party No. 1 to the opp. party No. 2. Ex. A7 is the medical report of the opposite party No. 2. The appellant contended that Ex. A7 medial report of the opp. party No. 2 establishes that she has suffered retinal degeneration as diagnosed by the first opp. party. We have gone through Ex. A7 which is issued by L. V. Prasad Eye Institute dated 6. 3. 2003. It is stated in the said report as follows: " Mrs. Venkat Subbamma a 40 year old lady first seen at our institute on 6th May, 2002. She came with complaints of blurring of vision in right eye following 2 days after cataract surgery done on 29th March, 2002. She is not known to have any systemic illness. On examination here, her visual acuity was 20/400 in right eye and 20/20 with 1. 00 Dcyl @ 110 in left eye. The applanation pressure was 13 and 16 mm. Hg. in the right eye and left eye respectively. On external examination, ocular motility was full. Anterior segment examination was within normal limits. PC IOL was in place in both eyes. Fundus examination of the right eye showed superior retinal detachment with a lattice and a horse shoe tear. In left eye lattice degeneration with atrophic hole were seen superiorly and inferiorly. Based on the above clinical findings we have diagnosed her to be having pseudophakia in both eyes, partial rhegmatogenous retinal detachment in right eye and lattice degeneration with break in both eyes. He underwent barrage photocoagulation in left eye on the same day. For the right eye we have advised her to undergo scleral buckling + parsplana vitrectomy, endolaser and fluid gas exchange with guarded visual prognosis. She underwent scleral buckling under local anaesthesia on 14th May, 2002. Post operatively retina was attached and she was doing well. She was again reviewed here on 28th May, 2002. Fundus examination revealed total funnel shaped retinal detachment with PVR DI. We have advised her to undergo parsplana vitrectomy, endolaser and silicone oil injection in right eye with guarded visual prognosis. "

As per the said medical report itself goes to show that there was no medical negligence on the part of the opp. party No. 1. There is no material put forth with regard to the deficiency in service by the opposite party No. 1 in giving medical treatment to the complainant. The appellant further submits that the operation conducted by the opp. party No. 1 is not advisable as she was having squint. To substantiate her claim is concerned the appellant has not led any evidence The second opposite party was never examined and no such contention of evidence is forthcoming from the second opp. party. In the cross-examination also RW1 clarified this aspect that the operation is not advisable to the patients having squint in eye it could be preferably done in the patients in between the age of 12 to 14 years. The appellant has not filed any medical literature to substantiate her claim. The burden of proof lies on the complainant with regard to the medical negligence aspect is concerned. The appellant has failed to prove that on account of the operation conducted by the opp. party No. 1 her eye-sight was affected. Even in the medical report of the opposite party No. 2 hospital there was no mention that there was negligence in conducting the cataract operation by the opposite party No. 1. The appellant contended that the opposite party No. 1 was not having any equipment to conduct the surgery connecting to retina which is clear and categorically establishes the deficiency in service on the part of the opposite party 1. The submission made by the appellant is concerned she has not led any evidence. Oral evidence of the complainant is not supported by any medical evidence filed before District Forum. Ex. B1 is the out-patient record of the complainant. Ex. B2 is the out-patient medical record of the complainant maintained by the opp. party No. 1. which goes to show that there is no medical negligence on the part of the opposite party No. 1. The District Forum has elaborately discussed all the documentary evidence filed by both the parties and given finding that there is no medical negligence on the part of the opp. party No. 1. On the request on behalf of the complainant the Dist. Forum issued a direction on 14. 10. 2004 to the medical Superintendent, Nijam Institute of Medical Sciences to constitute a medical team of experts consisting of Opthalmic Surgery to examine the eyes of the complainant on 15. 10. 2004. The Medical Superintendent of Nizam Institute of Medical Sciences informed the Dist. Forum that they do not have Opthalmic wing and requested to refer the complainant either Sarojini Devi Eye Hospital, Hyderabad or to Dr. L. V. Prasad Eye Hospital, Hyderabad. Thereafter the District Forum on 25. 10. 2004 directed the Medical Superintendent of Sarojini Devi Eye Hospital, Hyderabad to constitute a Medical Team of experts to examine the complainant. . The Medical Superintendent of Sarojini Devi Eye hospital informed the Forum that they cannot examine the complainant since they did not treat her. Thereafter the complainant did not take steps The appellant has even not filed the affidavits of any doctor to show that on account of medical negligence on the part of the opp. party No. 1 her eye sight affected. The appellant did not produce any expert opinion to support her plea and atleast medical literature is also not filed. The District Forum has elaborately discussed all the documentary evidence as well as oral evidence and given finding that the complainant has failed to discharge to her burden to prove that there was medical negligence on the part of the opposite party No. 1. There are no reasonable grounds to interfere with the order passed by the District Forum.

IN the result, appeal is dismissed, in the circumstances without costs. Appeal dismissed.