ORDER
(Passed on 15/11/2018)
PER SHRI.ATUL D.ALSI, PRESIDENT.
The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 alleging medical negligence on the part of OP while performing cataract operation of the right eye of the complainant and claiming compensation for loss of eye amounting to Rs.19,50,000/- and further claiming compensation of Rs.40,000/- towards mental torture and Rs. 9000/- towards cost of proceeding.
2. The story in short giving rise to this petition is that the complainant is a resident of Taluka Mul, Distt.Chandrapur. The OP is M.S. Eye Surgeon at Chandrapur. On 12/6/2012, the complainant had gone to the hospital of OP for a check up of his eye. After checkup by the OP, the OP suggested cataract operation and told the complainant that estimated expenses for the operation would be around Rs.20,000/-.
3. On 13/6/2012, the complainant was admitted in OPs hospital and his right eye was operated upon and ultima lense was implanted to his right eye. Accordingly, the complainant paid Rs.20,000/- to the OP but the OP refused to issue receipt for the same. Thereafter, the complainant approached the OP for regular check up and follow up treatment on 18/6/2012. At the time of check up, the complainant told OP doctor that there was severe pain in his right eye and the sight is also not clear. However, the OP did not pay attention to it and simply prescribed some medicines and assured that there will be no pain after a period of 8 days. But the pain persisted and hence on 29/6/2012, the complainant again approached OP doctor, but the OP again prescribed some medicines for one month and assured that there would be no pain anymore. However, the pain persisted thereafter too and hence again on 13/9/2012 and 28/11/2012 the complainant along with his son, approached OP doctor’s Hospital, but the OP again prescribed some medicines for one month and assured that there would be no pain anymore.
4. Even after repeated visits to the OP doctor and following his treatment, there was no relief from pain and the eye sight of right eye of the complainant was also diminishing. Hence she approached to Dr.Ambatkar and Dr.Agnihotri of Nagpur for necessary check up and treatment. After check up, Dr.Ambatkar and Dr.Agnihotri told the complainant that the surgery performed by OP was wrong, but they refused to give there opinion in writing.
5. Thereafter, the complainant again approached to the OP for further treatment but he refused to treat her anymore. The OP has also not obtained the necessary certificate for operation from the Civil Surgeon and as per Bombay Nursing Home Act,1949 and other relevant Acts. Therefore, the act on the part of OP amounts to negligence and deficiency in service due to which the complainant lost sight of his right eye totally. Hence, the complainant has filed this complaint.
6. The complaint is admitted and notice was served to the OP. The OP filed his reply and thereby admitted that on 13/6/2012, the OP performed operation on the right eye of the complainant and ultima brand foldable lense was implanted to his right eye. However, he submitted that the operation was performed without charging any fees due to friendship with the son of the complainant. On 18/6/2012, the complainant approached to the OP for follow up treatment. At that time complainant’s eyesight was good, but there was some pain in her eye and therefore, the OP prescribed some medicines and advised the complainant to come after 10 days again if pain persists. On 29/6/2012, the complainant again approached to OP, but there was no complaint of pain. Therefore, the OP prescribed some medicines except medicines for pain. On 13/9/2012, the complainant again approached to OPs hospital and told that the pain is decreasing. Therefore the OP prescribed medicines of lower power for one month. At that time, the eye sight of the complainant’s right eye was marginally improved. The OP had already told the complainant that the lense is unifocal and hence it requires spectacles. On 20/11/2012 the complainant again came and complained about pain, but the pain was decreasing. Therefore, medicine was prescribed for one month. But thereafter, the complainant did not turned up.
7. The OP submitted that the patients undergoing cataract surgery are usually not admitted and they are discharged after some time after performing operation. Hence no registration as per Bombay Nursing Home Act,1949 is required. Whenever the complainant complained about pain in his eye, the OP has prescribed lower doses at various intervals. The condition of the patient was good and his treatment was done as per prescribed norms of surgery. Hence there is no negligence or deficiency in service on the part of OP and, therefore the petition deserves to be dismissed with cost.
7. Counsel for the complainant argued that after operation, the sight of the complainant’s right eye was not clear and there was severe pain in her right eye after operation. Therefore, the complainant approached to OP on 18/6/2012, 29/6/2012, 13/9/2012 but did not get any relief from the medicines prescribed by the OP. Hence he approached to Dr.Ambatkar and Dr.Agnihotri of Nagpur and as per second opinion given by them, there was negligence in performing operation by the OP. Hence the complaint deserves to be allowed as prayed.
9. Counsel for the OPs argued that the no prior notice has been issued by the complainant to the OP before filing this complaint and hence the complaint is premature. There is no evidence on record to prove that there is negligence in performance of operation by the OP. There is no evidence on affidavit of Dr.Ambatkar and Dr.Agnihotri in respect of negligence in operation. On the other hand, the eye sight of complainant had marginally improved from 6/60 to 6/12 and finger counting upto 4 meters. The expert report given by the Civil Surgeon is in favour of the OP. As per expert opinion, there is no negligence on the part of OP in performing operation. Hence there is no merit in the complaint and it deserves to be dismissed with cost.
10. We have gone through the complaint, written versions filed by OP, affidavit, documents and WNA filed by the parties. We have also heard the
oral arguments advanced by parties.
Points Finding
1. Whether the complainant is a Consumer ? Yes
2. Whether there is medicl negligence and deficiency in
service on the part OP ? No
3. What order ? As per final order..
As to issue No.1
11. The complainant has filed on record the treatment papers, prescriptions issued by the Opposite Party. The OP has denied to have accepted consideration for the operation. The complainant has claimed that she had paid Rs.20,000/- as consideration for the operation but the OP refused to issue receipt. In this regard, it is pertinent to note that the OP is a professional medical practitioner and has nowhere claimed that he does medical practice for charity. As such, though there is no receipt for fees is filed on record, in view of the law laid down by Hon’ble Supreme Court in the matter of Indian Medical Association Vs. V.P.Santha dated 13 November,1995, hospitals where charges are required to be paid by persons availing the services but certain categories of persons are exempted from paying the charges, have been held to be rendering service for consideration to all the patients including those availing service free of charge. In view of the judgment of Hon’ble apex court, the complainant is a consumer within the meaning of Section 2(1) (d) and the services provided by the OP is the services within the meaning of section 2(1)(d)(ii) of CP act. and hence the issue is decided accordingly.
As to issue No.2 & 3
12. The Opposite Party is a qualified medical practitioner having done his M.B.B.S. and M.S.(Opthelmology) from Government Medical College, Nagpur. As per the certificate issued by Shri.Sadguru Seva Sangh Trust which is a registered charitable trust, the OP has worked as Chief Eye Surgeon at Sadguru Netra Chikitsalay, Chitrakut run by the trust for the period 1/4/2004 to 31/1/2006 and has performed around 10,000 eye surgeries including prolific no.of Phaco, Glaucoma and Oculoplastic Surgeries.
The complainant has not filed any cogent evidence to prove his allegation of medical negligence on the part of OP. He failed to prove his contention that Dr.Ambatkar and Dr.Agnihotri had opined that there was negligence on the part of OP doctor while performing the cataract operation. He has not filed evidence on affidavit of Dr.Ambatkar and Dr.Agnihotri on record.
The expert committee constituted by Government Hospital Chandrapur consisting of Civil Surgeon, District Ophthalmic Surgeon and Eye Surgeon, as its panel members, has submitted its report dated 29/4/2016. The panel has given its opinion that the operation in the instant matter was performed as per prescribed and settled medical norms and there is marginal increase of eye sight in the eye of the complainant and as such, there is no negligence on the part of OP.
In view of the above facts, circumstances and the evidence adduced on record, we find no merit in the complainant’s case and it deserves to be dismissed.
Hence the order..
Final order
1. The Complaint is dismissed without cost.
2. Copy of the order be furnished to both the parties free of cost.
(Smt.Kalpana Jangade (Kute) (Smt.Kirti Vaidya (Gadgil) (Shri.Atul D.Alsi)
Member Member President
