SOURINDRA Mohan GHOSH vs D.V.PAHWA

THE complainant has approached this Commission claiming compensation for a sum of Rs. 6,00,000/- for loss of vision of his right eye and harassment, etc.

THE fact of the case is that the petitioner approached the O.P. for a test of his right eye. On examination the O.P. advised operation so as to remove cataract. He assured that once the cataract is removed, he will get the vision back. THE O.P. observed that it was a minor operation only and the complainant need not worry. He advised some pathological test/examination. THE complainant paid Rs. 150/- to the O.P./Doctor as his fee for examination of his right eye on 1.9.1993. On the advice of the O.P. the complainant had undergone some investigation and showed all the reports to the O.P. After considering all the reports, the O.P. fixed the date of operation on 10.1.1994 at 9.00 a.m. and asked the complainant to deposit a sum of Rs. 6,000/- as an advance which the complainant did. According to the complainant the operation was done on his right eye on the stipulated date i.e. 10.1.1994 and the O.P. accepted Rs. 6,000/- from him as fees for operation. After the operation was over he was accommodated in a separate room on the same day. Towards evening after dressing the petitioner could see nothing and it was reported to the O.P. THE latter told him that some blood had collected in the eye and he would get back the vision. On the next day he was released from the Eye Micro Surgery Centre with prescription and necessary directions to report again on 18.1.1994. Back home he learnt from his relations that the O.P. had made refund of Rs. 3,000/- out of Rs. 6,000/- which he had accepted as operation charge. On 18.1.1994 the complainant contacted the O.P. who kept on assuring that the vision would develop gradually and there is nothing to worry. According to the complainant the EKO Surgery was done on 2.2.1994 and the complainant again called on the O.P. on 3.2.1994 with the report. On this occasion also he assured that everything will be alright and he need not consult Sankar Netralaya and Others, reputed eye treatment hospitals. On 16.11.1994, the complainant again contacted the O.P. when the latter told him that his eye could not be cured. Being highly dissatisfied with the performance of the O.P. the complainant did not visit him further. In the meantime, he consulted other Doctors of different institutions and came to learn that there is no chance of gaining vision in his right eye and for all practical purposes he has lost vision of his right eye because of gross negligence on the part of the O.P. in making operation.

The complainant is a retired rifle mechanic and was aged about 61 years at the time of filing the petition in May, 1996. Accordingly he has preferred this claim.

THE case is contested by the O.P. by filing a written version wherein it has been claimed that he has specialisation in Opthalmology and during his professional career he performed Micro Surgery in about 15,000 cases. THE O.P. admits that he examined the complainant and on such examination noticed that he had a complicated matured cataract in his right eye with signs of Anterior Uveities (one of the signs of retinal detachment). So he advised the complainant to have Ultra Sound B Scan of the right eye along with routine pre-operative Pathological tests. According to the O.P. the complainant did not produce Ultra Sound B Scan report inspite of his specific advice, but insisted for performing Micro Surgery Operation. He claims that at that time he explained to the complainant and his relations that the chance of recovery of vision in right eye is remote. In the absence of Ultra Sound B Scan report his retinal problem could not be properly assessed. On enquiry as to why he could not procure the Ultra Sound B Scan report, the complainant explained that he could not obtain it because of financial hardship. According to the O.P. during the course of operation after removal of the matured cataract it was noticed that there was total R.D. (PVR)-Grade-V-D (total retinal detachment) with Proliferative Vitreo Retinopathy Grade-D. It has been ascertained that since retina of the complainant in the right eye was in a very bad shape no useful purpose would be served by implanting Intra Occular Lens (OIL). According to the O.P. a sum of Rs. 3,000/- was refunded to the complainant on humanitarian ground and also on the fact that no lens could be implanted. He admits that he advised him for EKO X-ray (Ultra Sound B Scan) to confirm his retinal problem. THE O.P. denies that there was gross negligence on his part in the matter of performance of operation. Consequently, the claim for compensation was refuted. It is not disputed that the complainant approached the O.P. on 1st September, 1993 for examination of his right eye. The O.P. noticed that he had a matured cataract in the right eye. He had also right divergent squint (15 degree) and also had signs of Asterior Uveits. Accordingly the O.P. advised him to get Pathological test done. Furthermore he asked him to undergo B Scan EKO X-ray. The complainant reported to him on 6.9.1993 with Pathological report but failed to produce B Scan report. According to the Doctor who examined himself as OPW-1, the B Scan was urgent and necessary because without the B Scan report it was almost impossible to know the state of posterior segment of the eye. The Doctor states that the complainant having expressed his inability to produce the said report because of financial reasons, he proceeded with the operation after explaining the risks involved in the operation without examination of the B Scan report. Incidentally, it may be mentioned that the complainant has not examined himself but depends upon the testimony of the O.P. and other materials on record. The Doctor who examined himself as OPW-1 states that he had narrated the risk involved in operation without B Scan report, because without such report it was almost impossible to know the state of the posterior segment of the eye. On 10.1.1994 the O.P. viz. Dr. Pahwa operated the right eye and removed the cataract. He decided not to implant the lens because it will not serve any purpose. Because of the fact that there was retinal detachment the Doctor states that the condition of the right eye was explained to the relation of the complainant and to the complainant himself during his subsequent visit. It is evident that the B Scan report was produced after the operation was done. The Doctor, however, asserts that the detachment of retina did not occur due to operation. He however, refunded Rs. 3,000/- out of the sum of Rs. 6,000/- received by him from the complainant as operation charges.

AS noticed earlier the complainant did not examine himself but he rests his case entirely on the evidence of the Doctor and surrounding circumstances and materials available on record. It is gathered from the evidence of the Doctor that B Scan report is absolutely necessary to ascertain the state of posterior segment of the eye. B Scan report is so vital and so urgent that on his first visit to the Doctor, the latter advised the complainant to get it done. But the Doctor operated upon the right eye of the complainant without such report. The Doctor (OPW-1) has, however, offered explanation for not insisting on such report before operation because the complainant expressed inability due to financial reasons. During cross-examination Doctor admits that excepting production of B Scan report, other Pathological reports were produced by the complainant prior to the operation. We find that B Scan report was eventually done (marked Exhibit ''D'') after the operation was done. This report demonstrates that there was retinal detachment which is not curable resulting in the loss of vision of the complainant permanently. According to the learned Counsel appearing for the complainant this act on the part of the Doctor clearly shows gross rashness and negligence. He submits further that the Doctor ought to have refused to oblige the complainant by performing the operation without such a report being examined. But this was not done. Instead the Doctor proceeded to operate the right eye resulting in loss of vision of the complainant permanently. It is urged on behalf of the complainant that the explanation of the Doctor to the effect that he performed the operation because of insistence on the part of the complainant for performing such an operation without the B Scan report cannot be believed especially in view of the fact that all the reports as asked for by the Doctor were produced by the complainant. Learned Counsel for the complainant submits that it is hard to believe that the complainant would plead inability in getting the said report because of financial stringency. He has asked as to disbelieve the explanation now offered by the Doctor during examination. He submits that the Doctor did not note in the prescription nor in any document about the risk involved in the matter. The Doctor has of course said during his examination in Court that he had explained the danger inherent in the operation because of want of this report, but, we do not find nothing in writing in the prescription or anywhere in the treatment sheet. The complainant had eventually got one B Scan report done when everything was over and he had become completely blind of his right eye. Had the complainant been told about the exact position of the matter he might not have opted for the operation or might have obtained second medical opinion about the advisability of such an operation. It is noticed that because of failure of the Doctor to enlighten the complainant about the entire matter, the complainant was denied of all the opportunities of having a better expert opinion in this regard. Learned Counsel appearing for the O.P. has drawn our attention to page 202 of Parson''s disease of the eye to show that ultrasonic investigation by the B Scan technique gives valuable information concerning the retina. It may be mentioned that nobody disputes about the aforesaid proposition. The Doctor himself advised B Scan report before operation but he proceeded with the operation without such report. Therefore, it can be said without any hesitation that the Doctor acted in a rash and negligent manner. Therefore, on consideration of all the materials on record we find and hold that there has been deficiency in service on the part of the O.P. and as such he is liable to pay compensation to the complainant. Now coming to the question of the quantum of compensation we find that the complainant has suffered total loss of vision of his right eye. He was 59 years old when the incident occurred and he is to spend the rest of has life without the service of his right eye. It is of course true that he is a retired person. It may be remembered that no monetary compensation is sufficient for the loss sustained by losing his right eye forever. It is also not difficult to visualise the mental agony and harassment suffered by the complainant. Considering all these circumstances, we think that it would be just and proper if a sum of Rs. 1,00,000/- is awarded as compensation to the complainant.

THE O.P. is directed to make payment of compensation of Rs. 1,00,000/- to the complainant within a period of one month from this date. Complaint allowed.