The case of the complainant in a nutshell is that complainant was suffering from eye problem . The complainant came to Opposite party on 7.1.2009 for check up his right eye suffering from some vision problem. Dr. told him that the
patient was suffering from posterior polar cataract which requires to be operated. So the complainant act as per advice of the doctor and after certain clinical investigation and using some medicine eye drops in the preoperative stage 20.3.2009 was fixed for operation at EMLC at Barabazar , Chinsurah, Nursing home. Pheco surgery was conducted on 20.3.2009 and patient was discharged on the same day as is usually done in such Pheco type operation, with some post operative advice. The complainant again came to the doctor on 25.3.2009 with a problem of reddish eye and doctor examined the same and released the complainant that after some days the problem will be normal and for this reason some medicine was prescribed. After some days the complainant noticed that entire cornea of the right eye of the petitioner turned white and he was feeling severe pain in his right eye. On the same day the petitioner came to the nursing home . After one and a half month from the date of operation i.e. on 20.3.2009 Op referred the patient to Dr. Bhaskar Roychowdhury a Cornea specialist of CMRI, Kolkata. The complainant came to Dr. Roychowdhury who conducted all necessary tests on the same day and opined that irritation in the right eye has formed owing to fungal ulcer and for injecting Kenacort injection. On 15.6.2009
he removed the stored Kenacort injection from the right eye of the complainant after performing necessary surgery in CMRI. The complainant again examined by that doctor on 17.6.2009 and doctor opined that there is no other alternative to change the cornea at once otherwise, his left eye would be damaged. The complainant went to Shankar Netralaya at Mukundupur on 18.6.2009 . The doctor told the cornea has already been damaged and requires replace immediately. The doctor advised the complainant to go to Shankar Netralaya at Chennai .
The complainant went Shankar Netralaya at Chennai , therein also the doctor after examining opined the right eye cornea is affected with fungal infection for application of the Kenacort injection which is a steroid as the cornea of the right eye had already been damaged , the complainant vision has been decreased. So, it is their opinion to change the cornea immediately. So the petitioner took admission at Shankar Netralaya on 27.6.2009 and was discharged on 1.7.2009 after surgery. The cornea was operated and removed and replaced on 28.6.2009 at Chennai. Expenditure of Rs.62,000/- was incurred by the complainant. After that the complainant came to the Kolkata .
The complainant has filed this case against the Op attributing negligency of Opposite party in performing operation and treatment of the affected eye by
Opposite party. The case has been filed on 1.12.2009.
The Opposite party contested the case by filing Written version denying inter alia all material allegations. It is admitted by the Opposite party that he conducted the operation on 20.3.2009 and he again examined the complainant on 21.3.2009 and 25.3.2009. On being asked by the complainant and their relatives the op/doctor told them that Kenocart injection was given and for such reason he was suffering from such problem temporarily and after some time that would be cleared within one and a half months. Afterwards, doctor told that the eye was pained owing to some allergic reaction for using some drops. After one and a half month Op referred the doctor to Bhaskar Roychowdhury a Cornea specialist of CMRI, Kolkata. It is also case of the oP that the prescription dated 7.1.2009 when doctor treated the complainant would speak about the findings and advised of the oP doctor to the complainant. After examination , doctor found posterior polar cataract which is a difficult and risk were explained to the relatives of the complainant before operation and patient was released with post medical treatment advice.
It is also case of the Opposite party that the complainant was suffering from Posterior polar cataract since 1999. On 25.3.2009 patient came with problem of reddish eye only. It is also the case of the Op that the complainant was treated by Bhaskar Roy Chowdhury but after 79 days of operation the petitioner came to the clinic with complaints and readiness for one day as per prescription dated 8.6.2009. There were features of acute inflammation for which relevant medicines were prescribed . The Op admitted that the tablet Onecan was prescribed on 11.6.2009 immediately anticipating the infection to be of fungal origin in a patient who was exposed to road side dust, fumes and micro-organism almost 10 to 11 hours a day. The op also denied that on 11.6.2009 there was no scope for his giving injection Kenacort on 15.6.2009 as evident from the case summary of Shankar Netralaya. It is also case of the oP that as per product insert of Kenacort from the manufacturer the action of the drug starts within 24 to 40 hours and gradually reverses over next 30 to 40 days and hence how kenacort could responsible for complication after 78 days. This question has been raised by the Op in paragraph 14 of Written version. Further case of this Op that to reduce the anticipatory risk after post operative inflammation injection long acting steroid was used as an adjunct and a difficult and complicated cataract surgery.
Accordingly, Op prays for dismissal of the case as Op performed operation with due care and attention and after many days the problem arose due to action or inaction of the patient/complainant.
Complainant filed photocopy of prescriptions and discharge certificate dated 25.3.2009, discharge certificate of Shankar Netralaya dated 1.7.2009 and others totalling 24 copies without any affidavit showing regarding filing of those photo copies . Even at the time of writing of judgement no original copy has been filed regarding his treatment since 1999. Complainant also filed Evidence in chief and Written Notes of argument. Op on the other hand filed photo copy of Medical journal “Cataract Surgery Inflammation” and one hand notes of Normal (Routine Cataract). Op also filed Affidavit in chief and Written Notes of Argument.
Upon pleadings, Written version and the documents filed by all the parties the following points are framed for proper adjudication of this case.
Points
- Whether the petitioner is a Consumer ?
- Whether there is any deficiency in service on the part of the oP ?
- Whether the complainant is entitled to get relief as prayed for ?
DECISION WITH REASONS
All the points are taken together for easiness of discussion.
The complainant has filed this case against the op/doctor for negligence in the operation of his right eye. So, the burden of proof is on the complainant to prove the case with sufficient cogent evidence to establish that doctor is guilty of negligence in performing operation. The complainant has filed written Notes of argument wherein he has stated what he has written in his complaint and Evidence in chief. He showed no document , no evidence to prove that Op /doctor is liable for negligence of duty or the complainant did not show or argue that the oP/doctor did not make proper appreciation of the patient and perform operation recklessly and without due care and attention or he did not emphasis regarding wrong prescription of medicine before or after operation of the complainant. Admittedly, the complainant was the patient of Op/doctor since 1999. The doctor discharged him after operation and problem actually started after two months when he went to Doctor Roychowdhury and afterwards on 18.6.2009 he went to Shankar Netralaya,Kolkata and thereafter he went to Shanakar Netralaya Chennai and was treated therein. But he did not advance any argument to
establish the deficiency in service on the part of the Op/doctor. Not only that the complainant did not file the original documents on which he has created the argument without any affidavit. The complainant has filed questionnaire where he put 12 questions . The doctor has answered those questions. With regard to the answer with question 6 and 8 the doctor answered in positive and the complainant with the help of the questionnaire i.e. cross examination failed to impeach the credibility on the act of the doctor . Another reply of questionnaire given by complainant to Abhijit Chatterjee , who gave opinion as per request of Dr. Bose. Abhijit Chatterjee replied in question no.6 which is quoted hereunder “KENACORT (TRIAMCINOLONE) is a steroid. All steroids have got some side effects like rise in Intra Ocular Pressure ( I.O.P.), risk of cataract formation, risk of infection etc. But steroids form the mainstay of treatment after cataract surgery, accepted by ophthalmologists nationally and internationally The action of TRIAMCINOLONE starts within 48 hours and gradually reverses over next 30 to 40 days as per the product insert from the manufacturer. But herein the treatment of this patient, the complication, developed after 79 days of operation and hence the possibility of complication within short period of application of the said steroid is completely ruled out”.
This doctor has opined above that complication developed after 79 days of operation and hence the possibility of complication within short period of application of the said steroid is completely ruled out. This oral evidence has been brought by the complainant by putting question i.e. cross examination of Dr. Abhijit Chatterjee. The complainant asked this self injured question to an medical expert, whose opinion has a great role in formulation of all questions regarding the complainant’s case and this answer ofcourse watered the total case of the complainant himself and this witness Abhijit Chatterjee has gone through the entire papers of treatment and he has acted in the field of Ophthalmology , so this Forum cannot disregard the precious opinion which has been given during the cross examination i.e. answer to the question put by the complainant in affidavit.
Furthermore, the complainant attempt to establish his case on the medicine Kenacort but this is not sufficient to prove the negligency of treatment of the Op. The complainant miserably failed having opportunity of eight years to adduce cogent evidence in support of himself and to establish negligency of the Opposite party/doctor. But he did not take that recourse during the long interval of nine years. But facts surfaced in the case is that there was an infection in the eye that too after two months of the operation. The complainant has been living
in a place full of dust and micro organism and different types of polluting agent . So the probability of infection cannot be ruled out by or behalf his own side and due to utter negligence of the complainant himself to protect his eye from bacteria or virus or any other agent . The doctor referred the patient to another doctor Bhaskar Roychowdhury , when doctor faced some doubt by prescription dated 11.6.2009. So, the oP has acted rightly in referring the patient to an other doctor for their opinion. In this respect also it cannot be said that doctor detained that patient without giving his any referral suggestion. It is not our concern how , where they have been treated . We are concern with the complainant and doctor during the period of treatment by the doctor.
We have gone through the records very carefully again and again and page by page . We have also wanted the complainant to see in the dock but complainant was absent. At the time of argument on being directed by this Forum to explain the case, the complainant’s Advocate did not utter anything and told Written Notes of argument has been filed wherein the case lies. On the other hand, the ld. Advocate appearing for the Op and the op/doctor himself argued showing many examples and Text Books in support of defence. Particularly, the doctor explained before this Forum what was the defect by drawing picture in the
eye by hand . So, we have no hesitation to hold that complainant ‘s case is failed miserably due to want of adequate , cogent , reliable evidence as per allegation of the complainant . The neat result is that the case fails. Hence it is -
Ordered
That the CC no. 170 of 2009 be and the same is dismissed on contest. No order as to cost.
Let a copy of this order be made over to the parties free of cost.
