BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT:THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 33 / 2004 MONDAY THE 28TH DAY OF JUNE 2010. P. Suseela, W/o. Periasamy, No.3/445, Thamizhar Street, Poonimagadu Village & Post, Tiruttani Taluk, Tiruvallur District. … Complainant. - Vs – Dr.A. Radhakirhsnan, M.B.B.S., M.S., D.O., A.M.A. Eye Specialist, Arakkonam. … Opposite party. . . . . This petition coming on for final hearing before us on 22.6.2010, in the presence of Thiru. T.M. Sivakumar Advocate for the complainant and Thiru. M.E. Ganapathy Advocate for the opposite party, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant is an agricultural coolly and depends only upon the daily wages. The complainant had developed some pain in her right eye and went for treatment with the opposite party on 6.6.02. The opposite party attended the complainant and advised the complainant to come after three days and also prescribed some tablets. As per the advise of the opposite party, the complainant took medicines and went to the clinic on 9.6.02. The opposite party without any proper diagnosis had injected some medicine in her right eye and prescribed some tablets. The complainant in pain has returned to her house, met the neighbour Vasantha, W/o. Ganesan, near Government Hospital, Arakkonam and the complainant explained all those incidents and wanted to have further treatment. The complainant was admitted at Sankara Nethralaya Medical Research Foundation, Chennai on 19.6.02 for treatment, where the right eye of the complainant was removed and was fitted with a plastic shell. The complainant was put to great hardship and mental agony due to the deficiency in service by the opposite party. The complainant issued a legal notice to the Tamilnadu Medical Council, Chennai on 9.1.03 and there was no response. Therefore the complainant issued a legal notice to the opposite party on 17.9.03 and gave a reply dt. 10.11.03. Therefore, she has prayed for directing the opposite party to pay a sum of Rs.5,00,000/- towards the compensation for the pain sufferings, mental agony and hardship caused to the complainant with cost. 2. The averment in the counter filed the by opposite party is as follows; The complainant is put to strict proof of the allegations contained in the complaint except those are specifically admitted herein. The complaint filed by the complainant in purely vexatious and is not maintainable. The complainant has come forward with the complaint with a view to harass the opposite party, on basis of false and baseless allegations. Moreover the complaint is liable to be dismissed as the facts mentioned in the complaint can not attract the provision of C.P. Act, and the cause of action mentioned in the complaint are nothing but false baseless and frivolous. The allegations contained in para-3 of the complaint that she came for treatment on 6.6.02 and on 9.6.02 is admitted. On both the days since the complainant had corneal ulcer in her right eye the opposite party after diagnosing her ailment prescribed tablets, Eye drops as mentioned in prescription dt. 6.6.02 and also considering the severity of the ulcer the opposite party injected Gentamycin on 6.6.02. The Gentamycin injection was given to reduce the injection and for early healing of ulcer. Further on 9.6.02 also the opposite party after satisfying with the improvement of the patient gave her the same Gentamycin injection and also prescribed tablets as mentioned in the prescription dt.9.6.02. She was also given Ofloxayone Eye drops free of cost. After giving the above medicines in the form of Injection, tablets and Eye Drops, since the opposite party suspected fungal corneal ulcer she was advised to undergo urine, blood analysis. CORNEAL CULTURE, FUNGAL Stain. Further, she was advised to come to the clinic for review on the 5th day, along with the results of the above investigations. But the complainant did not return back for review for further treatment. It is falsely alleged that the opposite party without any proper diagnosis had injected some medicines in the Right Eye and prescribed tablets. On the other hand the injection and the tablets prescribed by the opposite party are clearly mentioned in the prescriptions dt. 6.6.02, 9.6.02, respectively. It could be seen those medicines and the injection were prescribed by the opposite party only after careful and proper diagnosis. Thus without knowing the nature of the medicine the complainant has come forward with this kind of false complaint only with a view to extract money from the opposite partly, some how or other further the fungal infection will occur only if the patient wipes the eye with unhygienic cloth or cotton, therefore by no stretch of imagination the opposite party can be held responsible for the ailment suffered by the complainant. Even according to her complaint she attended Sankara Nethralaya Medical Research Foundation only on 19.6.02 for treatment. That means she should have been without medicines atleast for 5 or 6 days. 3. It is pertinent to note even as per the discharge summary given by the Sankara Nethralaya Medical Research Foundation filed along with the complaint nothing is mentioned to indicate that the complainant’s ailment seen by them was due to the negligent (or) improper prescription of medicines and injection given by the opposite party. The opposite party has been working in the government hospital from the year 1981 on wards as on opthalmaloph because of his good diagnosis and treatment he gained very good reputation among the public and he was also rewarded “Service Award” six times by Rotary Club for his free service rendered to poor persons. Therefore the opposite party being no way responsible for the suffering of the complainant he is not liable to pay any compensation to the complainant. Hence this complaint is to be dismissed with exemplary costs. 4. Now the points for consideration are: a) Whether there is any deficiency in service, on the part of the opposite party b) Whether the complainant is entitled to the reliefs asked for?. 5. Ex.A1 to Ex.A7 were marked on the side of the complainant and no documents were marked on the side of the opposite party. Proof affidavit of the complainant and Proof affidavit of the opposite party have been filed. Dr. N. Radhika examined on the side of the complainant as P.W.-1. No oral evidence let in on the side of opposite party. 6. POINT NO. (a) It is admitted facts of the parties that the complainant had took treatment from the opposite party on 6.6.02 & 9.6.02 for Corneal ulcer in her right eye. 7. The complainant contended that without any proper diagnosis the opposite party had injected some medicine in her right eye and prescribed some tablets on 6.6.02 and 9.6.02. Due to wrong medicine and injection prescribed by the opposite party, the complainant’s pain in her right eye developed and due to sever pain she admitted in the Sankara Nethralaya Medical Research Foundation, Chennai on 19.6.02 for treatment, where the right eye of the complainant was removed and was fitted with a plastic shell. Therefore the complainant was put to great hardship and mental agony due to the deficiency in service by the opposite party. 8. The opposite party contended that when the complainant came for treatment on 6.6.02, the opposite party after diagnosing her ailment prescribed Eye drops and tables as mentioned in prescription dt. 6.6.02 and also considering the severity of the corneal ulcer the opposite party injected Gentamycin on 6.6.02. Further, on 9.6.02 also the opposite party after satisfying with the improvement of the patient gave her the same Gentamycin injection and also prescribed tablets as mentioned in the prescription dt. 9.6.02. She was also given Ofloxayone Eye drops. After giving the above medicines in the form of Injection, tablets and Eye Drops, since the opposite party suspected fungal corneal ulcer, she was advised to undergo urine, blood analysis. CORNEAL CULTURE, FUNGAL Stain. Further, she was advised to come to the clinic for review on the 5th day, along with the results of the above investigations. But the complainant did not return back for review for further treatment. 9. The learned counsel for the opposite party has argued that bare allegations in the complaint would not establish charge of negligence on the part of the opposite party. The burden of proof on the medical negligence lies on the complaint, but in this case, the complainant has not proved the allegation made in the complaint against the opposite party through Ex.A1 case summary of Sankara Nithralia Medical research Foundation and expert evidence of P.W.1 . In this connection the learned counsel for the 1st opposite party is relying upon the following Judgments of Hon’ble Supreme Court and National Consumer Disputes Redessal Commission, New Delhi. I. (2009) 7 Supreme Court Cases 130 C.P. SREEKUMAR (DR.), MS (ORTHO) ..Vs.. S.RAMANUJAM Wherein the Hon’ble Supreme Court is held that “ As already observed in Jacob Mathew case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. In Jacob Mathew case it has been observed as under: (SCC pp.32-33, para-48) “(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratantal 7 Dhirajlal (edited by Justice G.P.Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’ , ‘breach’ and ‘resulting damage” (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the par of a medical professional. “ II. 2007 (2) CPR 260 (NC) N. Krishna Reddy ..Vs.. Christian Medical College and Hospital Rep. by its Medical Superintendent & Anr. Wherein the Hon’ble National Commission, New Delhi is held that, “ Consumer Protection Act, 1986 – Sections 21(a)(i) – and 2 (1) (g) – Complaints about medical negligence – Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the complainant, no negligence or deficiency in service could be found against the affidavits filed by Hospital and doctors. “ 10. From the perusal of Ex.A1, dt. 16.1.03 Case Summary of Sankara Nethralaya Medical Research Foundation it is seen that the complainant was admitted in the said Hospital on 19.6.02 with the complaints of pain, redness and watering in the right eye of two weeks duration. She was diagnosed to have a corneal ulcer in the right eye. She underwent corneal scrapping, which revealed septate fungal filaments. She was started on topical Natamycin eye drops every one hour, Amphotericin B eye drops 0.15% every one hour, Ciplox eye drops six times a day, Homide eye drops twice a day, Iotim eye drops 01.5% twice a day along with vitamin C tablet and pain killer. Considering the grave prognosis for vision and considering the severe nature of the infection, the patient was advised evisceration under general anesthesia for the right eye. She underwent the same on 31.7.02 and she was fitted with a plastic shell, she was last seen on 27.12.02, when the shell fit was good in the right eye and the left eye was stable. She was asked to come for a review after 3 to 4 months. The Doctor who gave a treatment to the complainant in the said Sankara Nethralaya Medical Research Foundation was examined as P.W.1 on the side of the complainant. The P.W.-1 stated in her evidence that “kDjhuUf;F Vw;gl;l Injeciton jtwhd kUe;J cl;bfhz;ljpdhy; Vw;gl tha;g;g[ ny;iy. Wrong Treatment fhuzkhf Infeciton tu tha;g;g[ tuyhk; my;yJ tuhkYk; nUf;fyhk; kDjhuUf;F Vw;gl;l infection, Origijnal Cause K}yk; Vw;gl;L nUf;fyhk;. kUe;J rhg;gpl;ljpdhy; Vw;gl;l Allergy fhuzkhf kDjhuUf;F ne;j infection Vw;gl tha;g;g[ ny;iy. kDjhuUf;F Vw;gl;l Infection bjhj;J tpahjp fhuzkhf Vw;gl;L nUf;fyhk;. kDjhuUf;F Vw;gl;Ls;s tpahjp Fungus Infection and Ulcer rhpahd Kiwapy; rpfpr;ir vLj;Jf;bfhs;shtpl;lhYk;, mk;khjphp infection, Fzk; miltjpy; jhkjk; Vw;gl tha;g;g[ cz;L. kDjhuUf;F Vw;gl;l Injection, Wrong Medicine fhuzkhf Vw;gl tha;g;g[ ny;iy. “ Therefore the P.W.-1 who gave a treatment to the complainant in Sankara Nethralaya Medical Research Foundation, Chennai have not made any commends or adverse remarks in the Ex.A1, case summary of the said hospital about the injection, medicine, prescribed by the opposite party on 6.6.02 and 9.6.02. 11. The nature of the medical profession is such that there are many courses of treatment in each disease. The diagnostic procedure may by vary, and the approach by each doctor will be different and the treatment given to a patient differs from man to man. It is for the doctor treating the patient to decide the best course of action and if he has done the job exercising due diligence with such standard of care that is required of him. Unless it is shown that the Doctor has failed to opt a particular precaution or failed to follow the procedure and such failure has called to the ultimate result or complication. In the present case, the complainant had developed some pain in her right eye and went for treatment to the opposite party on 6.6.02. The opposite party after diagnosing her ailment prescribed some tablets and eye drops and also consider the severing of corneal ulcer the opposite party injected Gentamycin on 6.6.02. Further on 9.6.02 the opposite party after satisfying with the improvement of the patient gave her the same injection and tables as mentioned in the prescription dt. 9.6.02. She also Ofloxayone eye drops given, thereafter the complainant did not return back for review for further treatment. The P.W.-1 who gave a treatment to the complainant in Sakara Nethralaya Medical Research Foundation have not made any commends or adverse remarks in the Ex.A1 case summary about the injection, tablets, eye drops prescribed by the opposite party on 6.602 and 9.6.02. Therefore except the complaint there is no medical record or expert evidence to prove that without any proper diagnosis the opposite party injected some medicine in her right eye and prescribed some tablets and due to the deficiency in service by the opposite party, the complainant admitted in Sankara Nethralaya Medical Research Foundation Chennai on 19.6.02 for treatment. Hence there is no deficiency in service on the part of the opposite party. The authorities cited by the learned counsel for the opposite party are squarely applicable to the facts and circumstances of this case. 12. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to A7 and evidence of P.W..-1, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. Hence we answer this point (a) as against the complainant herein. 13. POINT NO : (b) In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite parties herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 14. In the result this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 28th day of June, 2010. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 6.6.02 - X-copy of Prescription by the opp party. Ex.A2- 9.6.02 - X-copy of Prescription by the opp party. Ex.A3- 16.1.03 - X-copy of case summary issued at Sankara Nethralaya. Ex.A4- 9.1.03 - X-copy of notice by the complainant to Tamil nadu Medical council, Chennai. Ex.A5- 17.9.03 - X-copy of lawyer’s notice by the complainant. Ex.A6- 23.9.03 - Ack. Card. Ex.A7- 10.11.03 - X-copy of Reply from the opp party. Opposite party’s Exhibits: ..Nill.. MEMBER-I MEMBER-II PRESIDENT. | 
