Hon’ble Mr. Dinesh Singh, Member 1. Heard learned counsel for both sides, and perused the material on record. 2. This is a case of alleged medical negligence, resulting in the loss of vision in the left eye of the complainant patient, after cataract surgery performed by the opposite party doctor. 3. The State Commission vide its impugned Order dated 09.08.2017 allowed the complaint and awarded compensation with interest. 4. A perusal of the impugned Order shows that the State Commission constituted an expert committee during the adjudication of the case before it. 5. The report of the said expert committee is reproduced below: REPORT OF THE COMMITTEE OF EXPERTS CONSTITUTED BY ADMINISTRATION VIDE ORDER NO. 1136 DATED 30.03.2012 As per direction of the Hon’ble State Consumer Dispute Redressal Commission, the experts committee, thoroughly examined the documents enclosed in the case no. 01 of 2012, as well as clinically examined, patient Mr. S.K. Alagiri, s/o Late Singan Kumarandi, r/o Anarkali P.S. Aberdeen, Port Blair appeared on 11.04.2012 at 11.00AM at the Eye OPD of G.B. Pant Hospital in response to letter served by committee. Issue to be examined by the committee:- (A) Lack of pre-surgical medical work up and investigation. The Pre-surgical, medical work up and investigation includes; 1) Diagnosis of type of Cataract and surgical procedure to be performed. 2) Occular examination of both eye to rule out any septic foci and to give opinion regarding success of surgery. 3) Complete physical examination to rule out systemic illness like Diabetes, Hypertension, Cardiovascular complication, chronic obstructive pulmonary diseases (COPD) and renal diseases. 4) Complete blood investigation including blood sugar, urine examination, Blood pressure, ECG etc. 5) Keratometry, biometry to calculate accurate IOL power. Comments: No documents submitted in support of above mention pre-surgical, medical work up and investigation. (B) Non-refund of the amount paid towards operation the second eye. Comments: Not Applicable. (C) Immediate post operative care was non-existence and the complainant was asked to go home 1 hour after surgery. Comments: With the available documents, the operative procedure done, post-operative medication and post-operative instruction is not available. (D) Complainant was not given discharge summary or any detail of the surgery performed including details of lens implanted. Comments: No discharge summary available in the enclosed documents. The documents regarding manufacturing, expiry, and type of lens used is not enclosed. (E) That the left eye of the complainant was visionless due to usage of the expired lens and or retained foreign bodies. Comments: The document regarding, lens card or sticker of the lens which contain, make, type of lens used, their manufacture date and expiry date is not available. The only available documents: which is referral letter given by Rohin’s Eye Hospital to Dr. Mohan, Rajan Eye Hospital, Chennai, which show diagnosis of post-operative endophthalmitis left eye, lens used during surgery, intravitreal vancomycin given and vision was PL + PR in all quadrants of left eye were mentioned. Comments: The dose of vancomycin and other standard medication for Endopthalmitis is not mentioned in the enclosed letter. On Examination of patient: We examined both eye of the patient and findings are as follows: 1) Torch light Examination: Right Eye: Anterior Segment: * Early lenticular changes present rest is normal. Left Eye: Anterior Segment: * Mild conjuctival congestion on upper Quadrant present. • 3 Corneo-Scleral stitches present • Anterior chamber well formed • Pupil semi-dilated and up-drawn • Papillary reaction absent • Aphakia present. The findings have been confirmed with the slit-lamp examination and slit lamp photographs taken. 2) Fundoscopy: Right Eye:- * Media hazy due to early lenticular changes * Optic disc, macula and general fundus is with in Normal Limit. Left Eye: *No glow 3) Vision:- Right Eye:- * 6/9, with pin-hole 6/6 partial. Left Eye:- * No perception of light 4) Intra-ocular pressure by non-contact Tonometer: Right Eye:- * 14 mmHg Left Eye: *Not recordable. Conclusion:- On the basis of scrutiny of documents and examination of patient Shri.S.K.Alagiri, S/O Late Singan Kumarandi, R/O Anarkali, Port Blair, by the Committee, it was found that patient is permanent blind from Left Eye. 6. It is seen that all material documents were not placed before the expert committee. It is also seen that, in respect of the five issues framed by the committee for its examination, the committee, in the absence of the relevant documents, did not record any categorical conclusion, one way or the other, on any of the issues. The committee, on examination of the patient, concluded its report by stating that “it was found that patient is permanent blind from Left Eye.”. That is to say, the committee confirmed that the complainant patient has permanent loss of vision in his left eye, but, in the absence of relevant material documents, expressed its inability to opine, either way, on any specific issue/s relating to deficiency or negligence. 7. It was, but, appropriate and necessary for the State Commission to [a] duly obtain the entire medical record relating to the patient and [b] duly provide all relevant material documents to the committee, to enable it to form its opinion, to the extent feasible, on the issues framed for its examination. 8. The comparison in the qualifications of the opposite party doctor and of the committee members is as below: The opposite party doctor was MD (Doctor of Medicine; a 3 year post graduate course) specializing in ophthalmology. Whereas one member in the expert committee, Dr. Saji Varghese, was a general surgeon, not an ophthalmologist, and the other member, Dr. Anita Shah, though an ophthalmologist, was a diploma in ophthalmic medicine and surgery (DOMS), not a post graduate. It is thus noted that member/s having equivalent or comparable or higher qualifications in the relevant faculty/ies than the opposite party doctor were not on the committee. 9. A mechanical approach to form an (inapt) expert committee cannot be adopted. An apt committee, in the facts and specificities of the case at hand, has to be formed by the concerned consumer protection forum, with the (due) application of its considered wisdom. 10. In this case, it was, but, appropriate and necessary for the State Commission to constitute a committee [a] with the experts in the concerned faculty/ies and [b] with the experts having qualifications equivalent to or comparable to or higher than the doctor on whose professional performance they had to opine. 11. It is, therefore, appropriate that the State Commission may: [a] constitute a committee of experts in the concerned faculty/ies with the experts having qualifications equivalent to or comparable to or higher than the doctor on whose professional performance they have to opine; and [b] duly obtain the entire medical record relating to the patient and provide all relevant material documents to the committee. 12. It may also to be seen that The Consumer Protection Act, 1986 is to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers’ disputes and for matters connected therewith. The Medical Council of India Act, 1956 is to provide for the reconstitution of the Medical Council of India, and the maintenance of a Medical Register for India. Both, the medical councils, and the consumer protection fora, work in their respective domains, as per their respective statutes. A consumer protection forum adjudicates complaints of deficiency in service and negligence against doctors under the Consumer Protection Act, 1986. Cases of professional incompetence and misconduct are judged by medical councils. Decisions of a medical council are, but, not binding on a consumer protection forum. Nor can a medical council sit in any form of judgment on the decision of a consumer protection forum. Decisions of a consumer protection forum are, similarly, not binding on a medical council. Nor can a consumer protection forum sit in any form of judgment on the decision of a medical council. Decisions of a medical council, though not binding, have, however, to be given the due consideration, if and as relevant and material to the particular case before a consumer protection forum, in adjudicating deficiency in service and negligence against doctors. 13. In the light of the above discussion, the impugned Order of the State Commission is set aside, with direction to constitute an apt committee and to obtain the entire medical record relating to the patient and provide all relevant material documents to it, as per para 11 above, and to then obtain its speaking report and adjudicate the case on merit, afresh, on facts and law. 14. The bench is consciously refraining from a detailed critique on the matter, or from recording any observations or comments etc. in the case, since the complaint is being remanded back and it does not in any manner want to color the vision of the forum below in the due adjudication of the complaint on merit. 15. So disposed. | 
