As per Mr. Atul D. Alshi, Hon’ble President.

1.             The complainants being legal heir of deceased filed complaint case U/s 12 of Consumer Protection Act 1986 for medical negligence in performing eye surgery on the complainant and thereby claiming the total compensation of Rs.19,98,200/- towards operation and medicine expenses, loss of income, mental torture and cost of litigation.

2.             The complaint in short as under – The complainant is resident of Nagpur and due to weak eye sight of left eye, he consulted to OP No.1 Shri RadhaKrushna Hospital and Research Institute through Dr. Deepak Yash Batra on 16/09/2012. After examination of left eye sight the OP No. 1 referred the complainant to OP No. 2 Dr. Anand Pangarkar.  Dr. Anand Pangarkar examined the complainant and advised treatment for right eye as there was accumulation of blood and operation of left eye the expected expenses would be Thirty to Thirty five thousand for the left eye and Seven thousand for treatment to right eye. On 24.11.2012 after routine test the OP No. 2 operated the patient and advised with routine follow up with medicine and eye drop. The OP No. 2 doctor had not advised the sugar test before operation though the OP No. 2 had knowledge about the complainant is a diabetic patient. After operation there was no change in eyesight of complainant. OP No. 2 doctor with intention to grab money unnecessarily threatened the complainant and advised operation with laser treatment on the eyes which was not at all necessary. On 19.02.2013 the OP No. 2 doctor performed the operation on right eye through laser and charged heavy fees and expenses towards medical expenses. But there was no change in eyesight of complainant. When, the complainant approached local Govt. Medical College and Hospital for necessary check up and they issued blind certificate of loss of 100% eye sight on 04.01.2013.

3. The complainant is retail seller of garments. He purchased clothes from wholesale market and use to sell door to door to the individual customers and earn for his livelihood to maintain his family. His son is appearing in engineering college and daughter also learning in degree college. Due to loss of eyesight the complainant is unable to carry his business and completely depend on earning on his son who is working a private job by discontinuing his education. The complainant lost his eyesight due to negligence of OP in performing operation. Therefore, the complainant is claiming Rs.88,200/- for operation expenses and medicine, Rs.10,00,000/- compensation towards loss of eyesight and Rs.9,10,000/- towards future income with cost of litigation.  

4. OP No. 1 Shri RadhaKrushna Hospital and Research Institute has filed reply and denied allegations and submitted that the complaint is not maintainable against OP No. 1 as OP No. 1 has not operated on complainant but who approached for consultation on 16.09.2012 and Dr. Deepak Yash Batra had examined him on behalf of OP No. 1 hospital. Therefore, OP No. 1 had not performed any eye surgery and hence not liable for any medical negligence and hence case needs to be dismissed with cost against the OP No. 1.

    

5. OP No. 2 filed reply and denied the allegations and submitted that the complainant approached to OP No. 2 as per advice from OP No. 1 and after necessary checkup as the complainant is known as high BP patient. The complainant was also advised for necessary routine test of diabetes and after getting his consent by explaining the risk involved in operation and consequences of operation and when the complainant was ready and fit for operation the complainant was operated. The operation was performed without any complications. It was noted that there was fresh blood inside the right eye then the process of bleeding was brought under control and on 24.12.2012 there was no fresh blood found. The colour of blood was ultered. After giving sufficient time for the blood to clear on its own, the complainant was taken up for the right eye operation on 19.02.2013. On that day, the blood was removed , membrane over macula was peeled off and then it was found that there was new vessel on the optic nerve. Therefore, additional laser treatment was given as per standard procedure protocol and practice as per medical jurisprudence. Therefore, there is no medical negligence on the part of OP No. 2 and hence case is liable to be dismissed with cost.

6. The learned counsel for complainant Adv. Swati Paunikar argued that, when the complainant had gone to OP No. 2, the complainant was not having any complaint in respect of right eye but OP No. 2 told that there was accumulation of blood in right eye and told the expected expenses for the operation was Rs.30,000/- to Rs.35,000/- for the left eye and Rs.7,000/- for the right eye. On 24.11.2012 OP No.2 operated right eye of complainant and advised some eye drops. The complainant was High Diabetic patient but OP No. 2 without any sugar test performed the right eye surgery. The OP No. 2 performed eye surgery on right eye even if complainant had no complaint in respect of right eye. After operation the eye sight of the complainant became more delicate. On 04.01.2013, after check up from Government Medical College and Hospital, the authority issued certificate of total blindness to complainant. OP No. 2 fraudulently only to extract money operated the right eye which was not having any problem but turned into blindness of deceased and the deceased was not able to see from his both eyes in remaining period of his lifetime. Therefore, the OP No. 2 is liable for medical negligence.

    

7. The learned counsel for OP No. 1 Adv. S.R.Khati argued that the OP No. 1 treated the patient as OPD patient and advised to approach OP No. 2 for further treatment by charging nominal fee Rs.80/- on 16.09.2012 and Rs.100/- on 22.09.2012. The OP No. 1 has no role in eye surgery of deceased and therefore no case is made out, hence complaint against OP No. 1 is liable to be dismissed with cost.

8. The learned counsel for OP No. 2 Adv. Amol Mardikar argued that, on 16.10.2012 the complainant had visited hospital of OP No. 2 and after examination the complainant was told there was bleeding in right eye and advised for operation to clear bleeding for the benefit of patient in view of the fact that the complainant’s right eye condition was marginally better than left eye. The complainant had advised to get diabetes under control and advised for physician checkup for diabetes and hypertension. This is first step to control his eye condition. On 16.10.2012 and 25.10.2012 the complainant underwent Laser Photocoagulation to bring the situation under control, twice in right eye and once in left eye. Laser is a standard treatment. On 20.12.2012 after retinal examination revealed that complainant’s right eye condition had worst, there were new vessels on the optic nerve in the retina with new vessel frond formation in the macula. Complainant’s left eye retinal examination revealed vitreous bleeding + glial proliferation + elevation of macula due to pull of glial bands. In view of left eye poor prognosis he was advised right eye pars plana vitrectomy + membrane peeling + endodiathermy + endolaser + intravitreal gas/oil. It means a very highly skilled operation done by only a few eye surgeons which consists of removal of blood inside the eye, removal of extra tissue which has grown, destroying the new vessels with electric diathermy, Laser to prevent recurrence of bleeding + intravitreal gas oil to keep the retina in place. This operation is now standard operation for such patients. The OP No. 2 argued about treatment that had been provided rightly and the complainant is not aware of the line of treatment and therefore he had made false allegations against the OP No. 2, which are unfounded and not correct. OP No. 2 had taken enough care and there is no medical negligence on the part of OP No. 2. According to OP No. 2, the expert committee has opined that, in case of patient, the entire precaution was taken before the operation in regards to the diabetic patient. The treatment given for the right eye was proper and correct and proper procedure was done before conducting operation i.e. checking of blood test and fitness certificate. OP No. 2 further argued that from the expert opinion OP No. 2 had done his job in a proper manner and the allegations made by the complainant were baseless. It is a settled principle of law that once the Doctor performed their duty as proscribed medically, then it cannot be termed as a medical negligence or deficiency in service. The complications which may have if arose at the later point of time, for which the doctor cannot be held responsible.

    

    

9.               After hearing of case the following points arose for consideration.

POINTS                                                      FINDINGS

1. Whether the complainant is consumer?                       Yes.
2. Whether there is deficiency in service on the part of OP?    No.
3. What order?                                   As per final order.

                             REASONING

10.              Point No. 1 to 3 – The deceased had approached for consultation about for poor eye sight of his left eye on 16.09.2012 to OP No. 1 and again on 22.09.2012 for which OP No. 1 hospital had charged Rs.80/- and Rs.100/- and issued receipt to the complainant. Thereafter, the complainant had approached to OP No. 2 as per advice given by OP No.1 and thereafter the OP No.2 who performed the eye surgery by paying fees as consideration therefore for the purposes of services the deceased is consumer of OP No. 1 & 2 within the meaning of Consumer Protection Act 2019.   

11.              After examination of patient by OP No. 2 told to the complainant had defect in the left eye and there was bleeding in right eye. On 16.10.2012 complainant again approached in the hospital of OP No. 2 where detail diagnosis of right and left eye had been done and as per document filed by OP No. 1 (Doc.No.3), there was bleeding in right eye as diagnosed by OP No. 2. The OP No.2 had given treatment to the complainant in respect of right eye bt intravitreal injection of Avastin-Avastin is an anti-vascular endothelial growth factor, drug which was injected inside the eye and stop growth of new vessels in the eye which bleed and caused loss/diminution of vision. This is a standard treatment which helps to gain some vision in his right eye with intention to clear the bleeding so as to reassess the right eye condition better at a later stage. The advised was given with view of fact that the complainant’s right eye condition was marginally better than left eye. The complainant was advised to get his diabetes under control and to get physicians check up and have a review with blood sugar reports. On 16.10.2012 and 25.10.2012 he underwent Laser Photo Coagulation to bring the situation under control, twice in right eye once in left eye which is standard treatment in medical jurisprudence. If Diabetes was not under control then injection in his right eye could not be given without diabetes under control and the Laser Photo Coagulation was done to bring the situation under control diabetic retinopathy and bleeding which is resulted in  victractonomy operation has became standard procedure and norms for such cases. In case of line of treatment the OP No. 2 has given the treatment and perform surgery as per standard norms of medical jurisprudence. The mode and manner of laser treatment has been adopted by OP No. 2 which was the best available treatment and performed the operation for the best possible result by explaining the cause and consequences of operation by obtaining free consent from complainant. As per opinion of committee of Government Medical College and Hospital Nagpur dt.03.10.2016, the OP No. 2 had taken entire precaution with blood tests before and after when the patient was fit for operation and fitness was taken by OP No. 2 Doctor from expert Doctors. The laser treatment and medicine given for right eye was proper and correct by applying proper procedure. When a doctor perform the duty as prescribed medically then it was not deficiency in service. On the other hand the complainant failed to file any affidavit of expert Doctor  in respect of medical negligence in treatment and operation perform by OP No. 2 to prove its contention as prima facie the burden of proof lies on the complainant. Therefore, the complaint has no merit in the case and there is no prima facie case is made out against OP No.2 Doctor but complainant dragged to face unwanted litigation, therefore liable to pay cost of litigation of Rs.10,000/- to the OP No.2.  liable to be dismissed as per following order.

ORDER

1. The complaint is dismissed.
2. The complainant is hereby directed to pay to the OP No. 2 Rs.10,000/- towards the cost of litigation.
3. Copy of the order shall be given to both the parties, free of cost.