By G. Yadunadhan, President:

            Complainant has approached this Forum alleging medical negligence on the part of the opposite parties which according to her resulted in the loss of vision of her left eye.  The complainant in the complaint alleges that she was suffering from cataract and had gone to 2^nd opposite party hospital on 1.5.2003 for consultation and got herself admitted there on the same day itself for the purpose of conducting an eye operation. The surgery was done on 2.5.2003 by the 1^st opposite party.  At the time of conducting the operation complainant totally lost her eye sight. Even though the complainant informed the 1^st opposite party that she lost her eye sight, the 1^st opposite party consoled her saying that sight will be clear later,  she was discharged from the 2^nd opposite party hospital on 7.5.2003.  Even at the time of discharge 1^st opposite party was negligent to hear the complainant that her operated left eye was suffering from deadly serious severe pain.  It is further contended that on the evening of 8.5.2003 when the pain of left eye became intolerable the complainant had to get herself admitted with the 2^nd opposite party hospital.  The 1^st opposite party was negligent even at that time and on 15.5.2003 the complainant was taken to the chest hospital by the 2^nd opposite party under the prescription of 1^st opposite party.  The complainant was discharged from Chest hospital on 19.5.2003 and the bill was paid by the 1^st opposite party.   On 22.5.2003  when the left eye of the complainant became swollen, reddish and very critical she came to the 1^st opposite party and admitted for 3^rd time.  Even this time the 1^st opposite party was very negligent.  When the complainant kept on complaining about her left eye to the 1^st opposite party, the 1^st opposite party had given a letter on 30.5.2003 to an eye hospital at Coimbatore and the complainant got discharged on the very next day on 31.5.2003.  At the time of discharge the 1^st opposite party advised the complainant to come to the 2^nd opposite party hospital on 2.6.2003 for giving final direction to go to the Coimbatore eye hospital.  When the complainant came on 2.6.2003, the 1^st opposite party admitted the complainant for the 4^th time and thereafter the opposite parties are not only giving any treatment but also not allowing the complainant to get discharged from there.  On 9.6.2003, notice was issued to the opposite parties calling upon them to pay Rs.10,00,000/- as compensation.  On 13.6.2003 and 16.6.2003 the opposite parties issued replies which according to the complainant is ridiculous contrary to the truth and unacceptable.  Hence the above complaint is filed claiming a sum of Rs.5,00,000/-as compensation.

            The opposite parties entered in appearance and filed versions disputing and denying the allegations and claims raised in the complainant.  The maintainability of the complainant was challenged on the ground that the 2^nd opposite party being run by a charitable trust had given free service and treatment in the free section OPD of the 2^nd opposite party hospital.  It was further contended that even the medical expenses for referring the complainant to Chest hospital for expert management was remitted by the 2^nd opposite party, which is admitted by the complainant herself.  Regarding the merits of the matter it was contended that the complainant came to the OPD of the 2^nd opposite party on 17.4.2003 with complaints of defective vision of both eyes.  Her vision was confined to hand movements in the left eye and counting fingers close to face in right eye.  Her lids and adnexa were normal.  Lacrimal apparatus was normal.  Her intraocular pressure was recorded and it was 20.6 mmHg in left eye and 18.9 mmHg in right eye.  She had mature cataract in the left eye. Her eye was dilated with dilating drops and Fundus examination was done.  Since there was no view of Fundus due to cataract the complainant was advised cataract surgery in her left eye, since she had more vision loss in her left eye.   Because of financial problems, she wanted the surgery to be done from free section, so she was registered in free section and the date was given for surgery to 1.5.2003.  On 1.5.2003, she came to OPD for admission.  Her eye lash clipping was done; Injection Xylocaine test dose was given.  Eye was cleaned with Betadine and antibiotic drops were instilled.  A scan was done to calculate the intra ocular lens power and the complainant was admitted in free section for Cataract Surgery.  On the day of surgery, her left eye was cleaned with Betadine, Antibiotic drops and dilating drops were instilled. Peri bulbar anaesthesia was given and small incision cataract surgery was done under strict aseptic care.  After surgery local antibiotic ointment was applied and sub conjunctival injection of Gentamicin and Dexamethasone was given.  Eye was padded and she was kept in postoperative ward under the strict care of the nursing staff.  Dressing was done on the next day.  She had corneal oedema, for which Predhisolone eye drops, Hypersol 5% eyedrops, Zoxan-D eye drops and T.Diamox was given.  On 4.5.2003 she had lid oedema, corneal oedema and there was discharge from the eye.  But there was no evidence of any Intra Ocular infection.  The complainant was advised to continue same treatment on 4.5.2003 and 5.5.2003.  On 6.5.2003 corneal oedema was reduced and fundus examination was done, which was within normal limits.  Along with same drugs, T.Ciprofloxacin and Ciprofloxacin eye ointment were added.  On 7.5.2003 the corneal oedema was reduced and eye was quiet.  Hence the complainant was discharged with same medicines and was asked to review in OPD after 5 days. On 11.5.2003 she was readmitted with foreign body sensation in the eye and eye discharge.  On examination the complainant had discharge from the eye.  Cornea was clear and pupil was dilated.  Along with same medicines, Ciplox eye ointment and Exocin eye drops was given.  On 12.5.2003 again she had severe lid oedema and discharge.  Her vision was 3/60.  She was asked to continue same medicine.  On 13.5.2003 her lid oedema increased and she complained inability to open eye.  On examination she had severe lid oedema and Chemosis.  Cornea was clear and there was no evidence of any intra ocular infection.  Conjunctival swab culture and sensitivity was taken and result was negative.  Allergy to drugs was suspected and drugs were changed to Chioramphenicol, Ofloxacin eye drops and Amikacin eye drops.  Her vision was 2/60.  On 14.5.2003 her eye discharge reduced, cornea was clean, anterior chamber was clear and fundus glow was there.  She was asked to continue same drugs with injection Betanesol and Avil.  On 15.5.2003 she was symptomatically better, but she developed giddiness and weakness.  RBS 190 mg% and blood pressure 140/80 mmHg and pulse 80/min.  She was asked to continue same treatment.  By evening her Vertigo and weakness worsened and she was shifted to Chest Hospital for further investigation and management.  In the chest hospital she was daily seen by Dr. Sreekanth Karat, Senior Visiting Consultant and was managed there.  She got discharged at request from there on 19.5.2003.  On 26.5.2003 she again got admitted and on examination she had lid oedema and chemosis and was treated with natamycin eye drops hourly, itral eye drops hourly, vancomycin eye drops hourly, fortum eye drops hourly.  On 27.5.2003, Dr. Sunil, Chief Retinal Surgeon of 2^nd opposite party hospital saw the patient and a diagnosis of purulent kerato conjunctivitia and gram stain was done, which was negative.  She was asked to continue the same medicine.  Since there was no improvement in her condition she was referred to Dr. J.K. Reddy, Sankara Hospital for further management. But she did not go there and told that she wanted treatment only from the 2^nd opposite party hospital and got admitted there on 2.6.2003.  She was treated with intra venous tinidazone, fortum, cifran, vancomycin and betadine eye drops.  She was managed with same drugs on 3.6.2003 and 4.6.2003.  Since there was no response to treatment, after doing VDRL test, she was referred to Medical College Hospital, Skin Department since possibility of Venereal diseases was suspected.  But she refused to go anywhere and got discharged from the 2^nd opposite party hospital at request against medical advice.  To the notice issued on behalf of the complainant a proper reply was given.  The 1^st opposite party was always enduring and attentive towards the complainant and cataract surgery was done under all aseptic precaution and with due diligence and care.  There was no negligence or carelessness on the part of the 1^st opposite party on conducting the surgery or afterwards and there was no deficiency in service on the part of the opposite parties.  The opposite parties are not liable to pay any amount to the complainant by way of compensation since the subsequent corneal oedema and its consequences cannot be attributed to be caused due to any negligence on the part of the 1^st opposite party in conducting the operation.  The compensation claimed is highly excessive and exaggerated and without any basis.  The opposite parties in short prayed for a dismissal of the complaint.

            The evidence in the matter consists of the evidence of complainant as PW1, through whom Exts. A1 to A9 were marked.  Dr. K.S. Chandrakanth, a Senior Consultant in Ophthalmology, who had worked in Madurai Aravind Eye Hospital, was examined as PW2.  The 1^st opposite party was examined as RW1 and the copy of the case sheet marked as Ext.B1.  Dr. N.V. Sivan, the Medical Director of the 2^nd opposite party hospital was examined as RW2 and Dr. K.B. Venugopal, Professor and Head of the Department of Ophthalmology, Medical College, Calicut (Rtd.) was examined as RW3.

            Issues that arise for consideration are: (1) Whether the complainant is a consumer as contemplated under the Consumer Protection Act?  (2) Is there any negligence or deficiency in service on the part of the opposite parties?  (3) What order as to relief?

Issue No.1:  The opposite parties would contend that the complainant is not a consumer as she was availing service under the free section OPD of the 2^nd opposite party and further contending the 1^st opposite party was rendering service by way of diagnosis, treatment and surgery free of charge to all the persons on that section.  Even the medical expenses for referring the complainant to Chest Hospital for expert management was remitted by the 2^nd opposite party and the admission to that effect in the complainant is pointed out.  The counsel for the complainant contended that the Ext.B1 as well as the evidence of RW1 and RW2 clearly showed that the 2^nd opposite party had received an amount of Rs.600/- from the complainant.  Apart from that he has relied on the decision of the Hon’ble Supreme Court of India in Indian Medical Association Vs. V.P. Santha and Others (AIR 1996 SC 550) wherein it has been held that all persons who avail the services of doctors and hospital who give free service to poor patients but charge fee from others are required to be treated on the same footing irrespective of the fact that some of them pay for a service and others avail the same for free of charge.  Persons belong to “poor class” who are provided free of charge are the beneficiaries of the service which is hired or availed off by the “paying class”.  Service rendered by the doctors and the hospital who render free service to poor patients and charge fees for others irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression “service” as defined in Section 2(1) of the Consumer Protection Act.  The opposite parties do not have a case that they are rendering service free of charge to all the patients.  In view of the above we hold that the complainant is a consumer covered and governed by the Consumer Protection Act.

Issue No.2:  Loss of eye sight of the operated eye is the main allegation of negligence raised by the complainant.  According to the complainant she lost the sight of the operated eye on account of the negligence on the part of the 1^st opposite party at the time of conducting the operation.  The main thrust of the argument of the Counsel for the complainant is that the very fact that the complainant has lost her eye sight would itself prove and establish negligence on the part of the opposite parties applying the principles of res ipsa loquitor.  The qualification, experience or expertise of the 1^st opposite party is not specifically challenged nor is there a case for the complainant that the 2^nd opposite party hospital is ill-equipped for doing such surgeries.  The affidavit filed by the complainant states that she was suffering from cataract and had gone to the 2^nd opposite party on 1.5.2003 for consultation and got admitted there on the same day for the purpose of conducting an eye operation to recover from the said disease.  Thus the fact that the complainant was suffering from cataract which required surgery is seen admitted.  In page 2 of the cross examination the complainant would state that even if a hand was brought close to the left eye she could not see the same, thus literally admitting that there was virtually no vision at all for the said eye before the surgery.  She would also admit in page 3 of the cross examination that similar surgeries were done on other patients also from the 2^nd opposite party hospital on the same day.  The treatment protocol followed as stated in the version filed by the opposite parties and revealed from Ext.B1 has been literally admitted by the complainant in the cross examination.  In pages 7 and 8 of the cross examination the complainant would candidly admit that she never wanted to go to the hospital at Coimbatore in spite of reference and had insisted for the continued treatment from the opposite parties. The complainant does not have a case that the opposite parties did something that a reasonable and prudent doctor would not have done or that they omitted to do something which a reasonable and prudent doctor would have done.  PW2 Dr. K.S. Chandrakanth is the expert examined on the side of the complainant.  The said witness has categorically stated that purulent kerato conjunctivitis is not an intra ocular infection, whereas in the chief examination questions  were put to the said witness mainly regarding intra ocular infection.  He would also add that in his experience he has come across resistant variety of organisms which does not respond properly to usual drugs and that if drug allergy is suspected the usual procedure is to change the drug and observe the patient.  PW1 in page 5 of her cross examination has admitted the fact of the change of medicines.  Taking of 2^nd opinion and reference to a skin specialist as was done in the case of the complainant is also stated to be the correct procedure by PW2.  PW2 in page 7 and 8 of the cross examination would state that in spite of best care and caution bestowed on the patient there is always a possibility of complication or something to go wrong.  The 1^st opposite party who was examined as RW1 has elaborately stated the procedures adopted and the treatment given to the complainant.  The fact that many other patients had also undergone cataract surgery on the said day and there were no complaints from the said patients is highlighted to contend that the complication that arose regarding the complainant is not nosocomial or latrogenic.  Some discrepancies in Ext. B1 case sheet is attempted to be highlighted in the cross examination but nothing has been brought out as to what exactly is the omission or commission on the part of the 1^st opposite party which according to the complainant has resulted in the complication.  RW2 has also given evidence in tune with RW1. Delay in production of the case sheet has been stressed on the part of the complainant.  But at the same time the complainant do not have a case that there is any difference in the treatment or procedure that has been elaborately narrated in the version with what is contained in Ext. B1.  RW3 Dr. K.B. Venugopal is the expert examined on the part of the opposite parties.  He was the Professor and Head of the Department of Ophthalmology of Calicut Medical College Hospital.  He has after perusal of Ext. B1 case sheet deposed that all standard pre-operative check-ups and examinations were done and that there was no contra indication for doing a cataract surgery.  He also adds that the surgery was done in aseptic conditions bestowing caution, due care and attention.  According to him Ext. B1 does not reveal any intra ocular infection and proper and standard post operative care is also seen done.  He states that if it was a case of complication traceable to the hospital it would have affected most of the other patients.  Purulent kerato conjunctivitis according to the said expert can be caused due to many reasons, many of which were fully unconnected with any fault on the part of the doctor or the hospital.  It is a medically accepted complication and proper and timely management was given as per Ext.B1.  According to him a doctor cannot be blamed for not investigating intra ocular infection when the patient is suffering from purulent kerato conjunctivitis.  The contention on the part of the complainant that the 1^st opposite party was careless in distinguishing/identifying between mature and immature cataract also cannot be sustained in view of the scientific explanation given by RW3.  According to him mature and immature cataract is nothing but the impression of the opacity of the lens by the treating surgeon and presently after 2000 doctors do not make any distinction between these two cataracts.  He has flatly denied the suggestion in cross examination that the complications for the patient arose because of the negligence of the opposite party.  Nothing is brought out in the cross examination to discredit the said witness or to substantiate the case and claim of the complainant and no suggestion even is put to the said witness that he is deposing to help the opposite parties or what he has stated is baseless.  In the notes of arguments submitted on the part of the complainant Section 106 of the Evidence Act and principles of res ipsa loquitor is relied on for requesting as finding of negligence against the opposite parties.  The legal position as far as cases of medical negligence are concerned is well settled.  The Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab and another reported in 2005(6) page 130 has reiterated that negligence in the context of 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 part of a medical professional.  So long as a doctor follows a practice acceptable to the medical professional of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the doctor followed.  So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that day, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.  It is for the complainant to prove his case, as has been held by the National Commission in B. Anthony Raj & another Vs. Thomas Hospital and another II (2006) CPJ 80 (NC) and in Dr. Sathish C. Gupta Vs. Rajkumar Nerula 2008(3) CPR 26 (NC) that simply because a patient has not favourable responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se applying the doctrine of res ipsa loquitor following the decision of the Supreme Court aforementioned.

The Hon’ble National Commission in Indira Kartha & others Vs. Dr, Mathew Samel Kallarikkal & another 1(2006) CPJ 62 (NC) has held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men , nor because he had displayed less skill or knowledge than others would have shown.  The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.  The medical practitioner is not an insurer and so he cannot be blamed every time if something goes wrong.  Indeed it is widely acknowledged that in medicine, in particular, things can go wrong in the treatment of patient even with the very best available care.  Court has to be careful and cannot return a finding of negligence on the ground that medical men did not comply with the existing common practice as that would stifle the innovation.  Burden of proving that the doctor was negligent rests with the complainant and it is not for the doctor to show that he was not negligent.  Medical negligence cannot be presumed and that cases of medical negligence fall in its own category and need to be proved with the help of expert opinion and such cases are not proved by uncertain evidence and in the realms of probability and that in the absence of expert evidence complaint alleging negligence would not succeed as has been laid down by the Hon’ble National Commission in Kanhaiya Kumar Singh Vs. M/s. Park Medicare and Research Centre III (1999) CPJ 9 (NC) and Saleemuddin & others Vs. Dr. Sunil Malhotra II (2006) CPJ 348 (NC).  The Hon’ble High Court of Kerala in M. Sobha Vs. Dr. Mrs. Rajakumari Unnithan & others AIR 1999 Kerala 149 relying on different rulings of the Hon’ble Supreme Court has held that in a case of medical negligence what is required to be judged is causation, nexus of injury with the action alleged to be negligent and not the consequence and that the principles of res ipsa loquitor cannot be applied mechanically in medical negligence cases.  In Sri. Sushil Kumar Addy & another Vs. Silver Line Eye Hospital & Research Centre and another 2005(1) CPR 611 WB relying on the text book of Ophthalmology, lens and cataract Vol.3, by Normal S. Jaffe, it has been held that the post operative endopthalmitis is one of the most serious complications of cataract surgery and aside from a tragic result for the patient in many cases, it is frustrating for the surgeon because it usually occurs after flawless cataract surgery.  It was further held that the complainant has miserably failed to substantiate his allegations that there was negligence or deficiency in service on the part of the opposite parties and the dismissal order of the District Forum was upheld by the State Commission.  The common evidence and the records in the matter clearly indicate that the opposite parties had treated the complainant bestowing all care, caution and attention as per the universally accepted standard medical protocol.  It is in spite of the same that the complainant developed complications.  There is absolutely no evidence let along any expert evidence suggesting that the opposite parties did something that a reasonable and prudent doctor would not have done in the given circumstances or that they have omitted to do anything that a reasonable and prudent doctor would have done in the given circumstances.  The complainant has failed to prove or establish the allegations of negligence raised by her.  The complainant has not established that her sufferings were due to want of average skill on the part of the opposite parties or due to want of care and attention.  All necessary pre-operative check ups are seen done and there were no contra indications.  The surgery was uneventful.  Proper post operative care is also seen given.  All the complaints were attended and treated promptly.  At times in spite of the best care, caution and attention complications may happen in cataract surgeries and for which nobody could be found fault with and the same are medically accepted complications.  No other patient operated on the said day has reported any complications.  Thus on an appreciation of the facts, records, evidence and the legal position applicable, indicated as above, no negligence, carelessness or deficiency in service can be attributed to the opposite parties.  In the result we find that the opposite parties were not negligent or careless in treating the complainant.  Since no negligence has been established, this complaint fails and is liable to be dismissed.

In view of the findings on Issue No.2 above, we hereby dismiss the complaint.  In the facts and circumstances of the case, the parties are directed to bear their respective costs.

            Pronounced in open Court this the12th day of November 2009.

                        Sd/-President                           Sd/-Member                

APPENDIX

Documents exhibited for the complainant:

A1        Photocopy of the discharge card.

A2        Photocopy of letter dated 30.5.2003 from the 1^st O.P. to Dr. J.K. Reddy,

            Sankara Eye Hospital, Coimbatore.

A3        Photocopy of the Certificate issued by Dr. Sreekanth Karat.

A4        Photocopy of the discharge summary.

A5        True copy of reply letter dated 13.6.2003.

A6        Copy of Lawyer notice dated 9.6.2003.

A7        Photocopy of reply notice to Ext. A6 lawyer notice.

A8        Photocopy of reply notice dated16.6.2003.

Documents exhibited for the opposite parties:

B1         Photocopy of Out Patient Records.

Witnesses examined for the complainant:

PW1     Kunhayisha, D/o. Abdurahiman, Aayanariparamb, Ulliyeri.

PW2     Dr. K.S. Chandrakanth, S/o. Late B.K. Shetty, Malabar Eye Hospital, Calicut.

Witnesses examined for the opposite parties:

RW1     Dr. Devaki Devi, D/o. E.K. Nambiar, Sruthi, 1/3826(B), Eranhiparalm, Calicut.

RW2     Dr. N.V. Sivan, S/o. N.V.Chathu, Sarath, Jaffarkhan Colony, Calicut.

-/True copy/-

Sd/-President.

(Forwarded/by Order)

Senior Superintendent.