M A Ganesh Raocomplaina vs T M A Pai Rotary Hospital

MR . Justice Chandrashekaraiah, President -The complainant has filed this complaint seeking for a direction to the opposite parties (for short, the ''O.Ps.'') to pay compensation of Rs. 19,00,000 alleging ''Deficiency in Service''.

THE facts in this case are as follows: Held : The complainant approached O.P. -1 Hospital as he had developed cataract in his right eye. O.P. -2 on examination advised the complainant to go for operation. According to the complainant, he approached O.P. -1 for a Laser treatment but he was advised to go for a regular operation as the said facility was not available in O.P. -1 Hospital. On the said advice the complainant was admitted to O.P. -1 Hospital on 2.7.1998. On the next day, i.e., 3.7.1998, the complainant was operated for cataract removal by O.P. -2. In order to insert the Lens the complainant had paid Rs. 2,000 to O.P. -1 Hospital. After the post -operative treatment the complainant was discharged on 4.7.1998. According to the complainant he was assured at the time of discharge that the operation was successful and the complainant would regain the vision. After the operation, as the complainant was not able to see through his right eye, he again approached O.P. -1 Hospital. On examination the complainant was advised to go for correctional operation. Accordingly, the correctional operation was conducted on 10.12.1998 and he was discharged from the Hospital on 12.12.1998. The complainant in the complaint has stated that after the second correctional operation, he could see through his right eye till about August, 1999. But on 13.8.1999, for the first time, the complainant found that his vision in the right eye was totally blocked. This made him to approach again O.P. -1 Hospital on 17.8.1999. On examination by O.P. -2 the complainant was told that a nerve had slipped and due to that his vision had not become clear. This has made the complainant to go for another operation on 19.8.1999. After the operation, the complainant was informed that there was some renal problem in the right eye and that an immediate operation was needed. It is further stated that there was infection in the right eye and, therefore, the complainant was advised to go to Sankara Netralaya, Chennai and, accordingly, he went to Chennai and got himself admitted to the said Hospital. In the Sankara Netralaya, the complainant was operated on 17.9.1999 for buckle removal and with this he had lost his sight.

AS there is no complaint against the treatment given at Sankara Netralaya, we are of the view that there is no need to refer to the treatment given in Sankara Netralaya in this order.

THE complainant has sought compensation of Rs. 19,00,000 as he had lost his eyesight and consequently he is unable to look after his properties and business. All the O.Ps. have filed a joint version denying the averments regarding the negligence in the matter of operation and the post -operative treatment. From the version it is seen that on examination of the complainant it was found that there was posterior polar cataract in the right eye. Fundus was Myopic. A Scan was done on 27.6.1998 which revealed an Intra -ocular Lens power of 120. The patient was diagnosed as Myopia with Posterior Polar Cataract in the right eye and he was advised to undergo operation. Accordingly, the complainant was admitted to O.P. -1 Hospital on 2.7.1998 and the Cataract operation for the right eye was done on 3.7.1998 by O.P. 2. In the version it is stated that at the end of the surgery a small posterior capsular tear was noticed. Posterior capsule tears are common during surgery and are compatible with good vision. It is further stated that since the patient was a myope and had Intra -ocular Lens of 12 D, Intra -ocular Lens of 12D were implanted after procuring it from the company directly. It is stated in the version that the complainant came again on 10.12.1999 and on that day it was found that his vision had dropped to 6/18 and there was Cystoid Macular Odema. Since the patient had not responded to conservative management, Pars Plana Vitrectomy was done after fully explaining the procedure and after taking informed consent from the patient. Thereafter, the complainant regained normal vision of 6/6 and he could see through his right eye after wearing spectacles and he had no complaint till 3.8.1999. Again the complainant came to O.P. -1 Hospital on 17.8.1999 on the complaint of sudden loss of vision. On examination he was diagnosed to have Retinal Detachment. Therefore, he was again admitted to O.P. -1 Hospital on 27.8.1999 and he was advised to undergo surgery. Accordingly, the complainant underwent the Retinal Detachment Surgery under General Anaesthesia on 19.8.1999. According to the O.Ps. the said surgery was done after taking all precautions. But the patient was suspected to have developed Endophthalmitis and in view of this Intravenous Injection, Cefotaxime and Gentamicin with systemic and topical antibiotics and steriods were administered on the patient. In spite of intense antibiotics and steriod therapy, the patient did not respond. Therefore, the patient was referred to Sankara Netralaya, Chennai, for expert management. Thereafter, the complainant took treatment at Chennai. The averment of the complainant that O.P. -1 Hospital did not forward the records relating to his treatment, to Sankara Netralaya also has been denied by the O.Ps. stating that the records were sent to Sankara Netralaya through e -mail and fax.

THE complainant in support of his case has filed his affidavit and also examined one expert doctor. The complainant has also produced documents, which are marked as Exhibits C -1 to C -7. The complainant and the expert Doctor were also cross -examined by the O.Ps. O.P. -2 has filed an affidavit by way of evidence and he was cross -examined by the complainant. O.Ps. have also produced documents, which are marked as Exhibits R -1 to R -45. These documents consist of case sheet maintained by O.P. -1 Hospital relating to the treatment given to the complainant.

ON the basis of the pleadings referred to above, the point that arises for consideration is: Whether the complainant proves negligence as against O.P. 2 as pleaded in his complaint? The fact that the complainant underwent three surgeries in O.P. -1 Hospital conducted by O.P. -2 is not disputed. According to the complainant the removal of his right eye -ball in Sankara Netralaya was due to the three surgeries done by O.P. -2 negligently. The O.Ps. in their affidavit have stated that there is no negligence in conducting the surgeries. Admittedly after the second correctional operation, the complainant has regained vision with the help of spectacles and, therefore, he was able to see through his right eye for about eight months. Thereafter, in the month of August, 1999, with the complaint that the vision in the right eye was totally blocked, he again consulted O.P. -2 in O.P. -1 Hospital. On examination, O.P. -2 was of the view that the complainant should undergo one more surgery as there was a rational detachment and, accordingly, O.P. - 2 conducted the surgery for ratinal detachment under a general anaesthesia. Subsequently, the complainant had developed Endophthalmitis and infection. For that O.P. -2 treated the complainant by administering antibiotics and steriods. As the complainant did not respond to the said treatment, he was referred to Sankara Netralaya, Chennai.

THE complainant has not been able to point out from the records produced by O.P. -1 Hospital relating to his treatment as to what was the negligence on the part of O.P. -2 in conducting the surgery. The complainant has also not produced the opinion of Sankara Netralaya to show that the removal of ball in his right eye was due to the surgeries conducted in O.P. -1 Hospital negligently. In the absence of any material produced by the complainant to that effect it cannot be said that O.P. -2 has negligently conducted the operations referred to above.

THE complainant has examined one Dr. Chandrashekhar who is considered as an expert witness. In his cross -examination he says that the ''patient can manage with the vision by 6/18 in one eye and 6/9 in the other eye without any operation and normal activities can be managed....Posterior polar cataract can sometimes causes day time glare and also night time glare. The patient had day time glare when he had come to me. It is not true to suggest that in the case of posterior polar cataract with day time glare with the vision of 6/18 early surgery is desirable''. The expert witness further states in his cross -examination that ''it is true that under the modern findings of the subject, early cataract surgery in the cases of posterior polar cataract with day time glare is recommended and done with 6/18 vision''. This statement is inconsistent with the statement made in the affidavit. He further states that when the Doctor decided to have surgery he did not know what was the condition of the patient. The expert witness has not stated anything either in his affidavit or in cross -examination as to what was the negligence committed by O.P. -2 in the operation conducted by him. Therefore, the evidence of Dr. Chandrashekhar does not help the complainant. O.P. -2 was examined as R.W. 1. The statements made by him in his affidavit are similar to the averments made in the complaint. In his deposition he has stated that the vision of the complainant was 16/18 and he was having posterior polar cataract in his right eye. This statement is in conformity with the deposition of expert witness in his cross -examination that ''it is true that under the modern findings of the subject, early cataract surgery in the cases of posterior polar cataract with day time glare is recommended and done with 6/19 vision''. He further states in his evidence that he has not conducted the operation negligently and there is no ''Deficiency in service'' in providing treatment to the patient after the surgery.

THE National Commission in the case of Mrs. Indira Kartha v. Dr. Mathew Samuel Kalarickal and Anr., reported in I (2006) CPJ 62 (NC)=2002 (I) CTJ 189, has held as follows: ''A medical practitioner is not an insurer and he is not to be blamed every time something does wrong. Indeed in medicine things can go wrong in the treatment found to have been given to the patient and so also proper care bestowed upon him both before and after his operation. Treatment fully explained to him and his informed consent taken for the purpose. Case of negligence against the opposite parties having not been established, the complaint is dismissed.''

The observations made in the said case are applicable to the facts of the case on hand with full force. Merely because the complainant could not regain his vision it cannot be said that there was any negligence on the part of the Doctor who had taken all care not only while conducting the operation but also after the operation. Even the medical literature also discloses that there could be scope for infection after the operation. In the instant case also there was an infection in the right eye of the complainant and the said infection was required to be treated by a high -tech hospital and, therefore, O.P. -2 referred the complainant for a better management to Sankara Netralaya at Chennai. For this we cannot find fault with O.P. -2.

ONE other complaint of the complainant is that even though O.P. -1 Hospital promised to send the case history to Sankara Netralaya, the same was not sent. From the material produced before us we find that O.P. -1 Hospital had sent the required information to Sanakara Netralaya not only through e -mail but also fax. Therefore, we are of the view that there is no ''Deficiency in Service'' on the part of O.Ps. Consequently, the complaint is liable to be dismissed.

ACCORDINGLY , we pass the following Order : The complaint is dismissed. Parties to bear their own costs. Complaint dismissed.