SMT. RAVI SUSHA  : PRESIDENT

         Complainant  has filed this complaint  U/S 12 of Consumer Protection Act 1986 for getting   an order directing  opposite parties  to pay Rs.10,00,000/-  to the complainant   towards compensation  alleging  deficiency in service on the part of  opposite parties.

   Short facts of the present complaint are  as under :- The complainant is a taxi driver, since 2010 he was consulting the OPs and issuing spectacles from 2013 onwards.  In the year July 2016, the complainant went to the OP in order to change his spectacles.  The 1^st OP after thorough check up, informed that he has got  cataract on his right eye and the  only remedy for the  same is surgery and  the 1^st OP assured 100% success in the surgery.  Accordingly, on 15/9/2016, 1^st OP had conducted cataract surgery of the right eye of the complainant and he was  strictly following the medicines prescribed by 1^st OP.  But unfortunately within two weeks of the surgery  there was  a complaint of watering from right  eye and the vision also was diminished and as per the advice of 1^st OP lacer treatment  was also done to his right eye.  But after that the  vision  of right  eye  was lost and became squinted.  On 10/3/2017  , when the  complainant approached the 1^st OP, informed  the complainant  that  nothing  can be done to his right eye.  The complainant alleged that he has lost his vision of the right eye only because of the negligence and  deficiency  of service on the part of OPs.  Hence complainant was constrained to sent legal notice to OPs, but they sent reply with  unreal fact.  Hence the complaint.

      After receiving notices  1^st OP filed version  having contention that the  complainant is a known case of diabetes mellitus since 17 years and had a history of treatment  of impaired vision elsewhere till 2011 before the  2^nd OP hospital since  2011 in consultation with other consultant doctors and  he came up for OPs with complaints  of severely  impaired vision in right eye counting finger 5 meters and  in left eye 6/12.  After  detailed evaluation  he was diagnosed to have immature cataract, proliferative diabetics retinopathy(PDR) and post pan retinal photo coagulation(PRP) status(done elsewhere) with tractional retinal detachment both eyes with vitreous hemorrhage , macular oedema in both eyes.   The complainant was advised good control of diabetes and  he was referred to  vitreo retinal surgeon  who advised  intra vitreat injection Avastin in both eyes and the eye vision of the complainant improved to 6/6 left eye and follow up visit showed stable proliferative diabetic retinopathy in left eye.  On 24/10/2012 the complainant had consulted Dr.V.A Jaison and he was advised cataract surgery in both eyes  but he was unwilling to undergo definite surgical treatment and also not regular in follow up. On 5/12/2014  the complainant was found to have developed macular oedema in right eye and stable proliferative diabetic retinopathy in left eye.  He was  advised  intra vitreat injection Avastin in right eye which was done in 12/12/2014  and his vision improved to 6/36 . On 25/6/2016  complainant consulted Dr.Rajasree Nambiar and on  examination he was  found to have  macula off tractional retinal detachment in right eye and she  advised cataract surgery combined with Vitreo retinal surgery at an early date which patient was not  keen to do.  The complainant  was again consulted  Dr.Sreepath Kamath on 20/7/2016 and he advised to proceed with the same line of  treatment advised  earlier without any further delay to prevent further  deterioration . Unfortunately the complainant reported only after two months on 15/9/2016. This time the complainant consulted the 1^st OP and as per detailed examination he was found to have developed severe macular ischemia with degeneration with proliferative diabetic retinopathy. 1^st OP had  explained about pre-disposing  factor likely to impair vision and gave  very  guided prognosis of vision in view of macular  ischemia with informed consent of  the complainant,  1^st OP had  conducted vitreoretinal surgery  with all aseptic care and precautions, and post operatively the vision  of  complainant improved to 6/60.  The last consultation was on 10/3/2017  thereafter he lost further follow up. It is submitted that his condition in the right eye was further  degeriorated due to inherent disease condition and had  very guarded prognosis of  vision  by doing vitreo retinal intervention  combined with cataract  surgery on  5/9/2016,  though the complainant had an initial post operative  improvement of  6/60 vision  right eye diminishing vision is not due to any negligence on the part of 1^st OP in conducting  surgery.  Further submitted that the complainant has been under treatment in the 2^nd OP hospital since 2011 with complaints of severally impaired vision and he was advised cataract surgery both eye as on 24/2/2012 itself but he was unwilling for the time being and further delayed surgery. The advice for vitreo retinal intervention  combined with cataract  surgery in 20/7/2016 was  given as part of follow  up advice since cataract  surgery had been advised as early on 2012 onwards.  Further stated that on 10/3/2017 the 1^st OP had given up further management saying there was nothing to be done is misleading and hence denied on 10/3/2017 the complainant was prescribed medicines for the diagnosed discomfort and advised follow up review up but he lost follow up. 1^st OP submitted that  he is having qualification of MS(Ophthalmology) FRVS with experience  of 20 years as a consultant  Vitreoretinal  surgeon.  Further stated that since there is no negligence or deficiency in service on the part of  1^st OP, prayed for dismissal of complaint.

      Both parties led their evidence.  Complainant has filed his proof affidavit and documents.  He has been  examined as PW1 and marked Exts.A1 to A6.  After examination  of PW1 , the case record of him from Aravind Eye Hospital , was summoned and marked as Ext.A7.

 On the side of OPs , 1^st OP filed chief-affidavit and was examined as DW1.  The case record of complainant in the  2^nd OP hospital is marked as Ext.B1.  After that the learned counsels of parties filed their written argument notes and the learned counsel of OPs made oral submission and submitted judgment of Hon’ble Apex Court.

   We have perused the medical records available before us and considered the evidence of parties in this case as well as the submissions of learned counsels of parties. 

   It has been mainly submitted by the learned counsel of complainant that within two weeks of the  cataract surgery done by 1^st OP on the right eye of complainant, there was complaint of watering from the said eye and the vision also was diminished.  The lacer treatment was also done to his right eye, but after that, the complainant lost his vision and his right eye became squinted .  Complainant alleged that the loss of vision of his right eye was happened only due to the negligence and deficiency  of service on the part of OPs.

   1^st OP contended that  he is having qualification of MS(Opthalmology) FRVS with experience  of 20 years as a consultant  Vitreoretinal  surgeon, conducted Vitreoretinal surgery  on the right eye of the complainant with informed consent of the complainant, with all aseptic care and precautions.  It is submitted by 1^st OP that the complainant came up for consultation at 2^nd OP centre on 28/9/2011 with a  history of diabetics Mellitus since 17 years and had a history of  treatment of impaired vision elsewhere till 2011.  On the consultation day he was diagnosed to have immature cataract, proliferative diabetics retinopathy(PDR) and post pan retinal photo coagulation(PRP) status(done elsewhere) with tractional retinal detachment both eyes with vitreous hemorrhage , macular oedema in both eyes.  The impaired vision in right eye counting finger 5 meters and  in left eye 6/12.  OP contended that after treatment by  giving  intra vitreat injection Avastin in both eyes the eye vision of the complainant improved to 6/6 left eye and right eye vision  to 6/36.  Further contended that he has been by doctors at OP hospital on the review dates and on 25/6/2016 Dr.Rajasree Nambiar examined and suggested cataract surgery combined with Vitreo retinal surgery due to Macula off tractional detachment in right eye but there was not ready to do.  After two months  on 15/9/2016 the 1^st OP examined him at first time and  found to have developed severe macular ischemia with degeneration with proliferative diabetic retinopathy.  It is submitted  that 1^st OP explained about pre-disposing  factor likely to impair vision and gave  very prognosis of vision in view of macular  ischemia with informed consent.  1^st OP conducted vitreo retinal surgery and post operatively the vision  of  complainant improved to 6/60.  The last consultation was on 10/3/2017  thereafter he lost further follow up.

   From the allegation of complainant and contention of 1^st OP, the point to be decided is  whether the medical negligence   and deficiency in service put forth by the  complainant is proved.  According to complainant, his loss of vision  and  squint on the right eye was due to the  faulty procedure adopted by 1^st OP doctor in conducting the surgery and post operative treatment.  Here the point to be noted is the complainant has made no  grievance about the qualification and experience of 1^st OP.

   The next allegation of negligence is within two weeks of the surgery there was complaint of watering from right eye and the vision also was diminished and  despite  making the complaint to the 1^st OP, he had done lacer treatment also to his right eye.  But after that the  vision  of right  eye  was lost and became squinted.  After that 1^st OP neglected, when informed about the loss of vision and squint of the right eye.  Complainant alleged that when the complainant visited him  and  told him that complication, 1^st OP informed, nothing can be done for the complication happened.

    Next allegation of negligence is that the silicon oil injected during the surgery was not removed from the eye, which caused complication.

   Here it is not disputed that after surgical procedure by doing vitreo retinal intervention  combined with cataract  surgery on  5/9/2016, by 1^st OP, the vision right eye  diminished and became squint.  Therefore the  crucial question which will decide is whether the said complication was a result of any act of  omission or commission as alleged by the complainant, on the part of  1^st OP which in turn can amount to negligence or deficiency in service.

   The 1^st OP submitted that the complainant was diagnosed to have severely  impaired  disease  conditions affecting  vision  and he was advised  cataract surgery as early  in the year  2012.  Later he was found to  have developed macular oedema in right eye and proliferative diabetic retinopathy and underwent  vitreal injection. His condition in the right eye was further deteriorated due  to inherent  disease condition .  For showing  the  inherent disease  condition of the patient, 1^st OP has  produced  the case record of complainant pertaining to his  treatment availed from  2011 onwards.  So according to  1^st OP, though the  complainant had an initial post operative  improvement of  6/60 vision  right eye diminishing vision is not due to any negligence on his part in conducting  surgery.  Further 1^st OP also denied the allegation of  doing laser treatment in the right eye of the complainant.

   The learned counsel of OP  submitted  website  regarding about the  nature of the disease of complainant” poliferative diabetic retinopathy” Proliferative diabetic retinopathy is a serious  complication of diabetes that affects the retina, the light-sensitive tissue at the back of the eye.  It occurs when abnormal  blood vessels begin to grow on the surface of the retina, which can leak blood and fluid into the eye, causing  vision  loss or even blindness if  left untreated.  This condition is more common in people with  poorly controlled diabetes, and its progression  can be  prevented or slowed down by controlling  blood sugar levels, regular eye exams, and prompt treatment.  Common treatments for proliferative diabetic retinopathy include laser therapy, injections of anti-vascular endothelial growth factor(VEGF)drugs, and  vitrectomy surgery.  The following  website  has several informative articles about the  nature of this disease that would be  helpful in gaining a better understanding of it .

   The American Diabetes Association (ADA) states that proliferative diabetic retinopathy is a serious complication of diabetes that  can lead to blindness if  left untreated.  It recommends that people with  diabetes undergo annual eye exams to detect early signs of diabetic retinopathy, including proliferative diabetic retinopathy. Source https://www/ -diabetetes.org/diabetes/complications/eye-complications.

The National Eye Institute(NEI) provides detailed information about proliferative diabetic retinopathy, including its causes, symptoms and  treatment options.  It explains that the abnormal blood vessels that grow in  this condition are weak and can bleed or leak fluid into the eye, causing vision loss. Source: https://www/ .nei.nh.gov/learn-about-eye health/eye-conditions-and-diseases/diabetic-retinopathy/proliferative-diabetic-retinopathy

 Mayo Clinic notes  that people with diabetes who have poorly controlled blood sugar levels are at a higher risk of developing  proliferative diabetic retinopathy. It also explains that treatment options for  this  condition include laser therapy, injection of anti-VEGF drugs , and  vitrectomy surgery. Source:

   In another Manjulata Garg vs. R.C.Mishra,2022 4 CPR(NS)169, submitted by learned counsel of OP in which it is held that to succeed  in any medical negligence claim, the complainant must demonstrate that four essential  ingredients of medical  negligence are namely 1) Duty of care(2) Dereliction of duty(3) Direct causation  and (4) Damage proximate to the breach.  It is submitted that in the instant case, the  complainant conclusively failed to prove all those ingredients of medical negligence.

   Further it can be seen that in the present case, there is no allegation that 1^st OP Ophthalmologist (Vitreoretinal surgeon) was not a qualified , skilled and experienced  ophthalmologist for conducting the cataract surgery.  Further there is no allegation that before conducting the cataract  surgery, 1^st OP had not done pre-surgical examinations.

   According to 1^st OP, the surgery conducted on complainant was uneventful and successful and the eye vision  again improved  to 6/60.  1^st OP stated that diminishing vision in right eye is not due to any negligence on the part of the  1^st OP in conducting  surgery.  It was due to  inherent disease  condition of the patient and he  was advised cataract surgery as early  in the year 2012.  Later he was found to have developed macular oedema in right eye and  proliferative diabetic retinopathy.

   Thus on a consideration of the submissions put forth on behalf of the parties, absence of expert evidence and in view of the law as laid down by the Apex court on the subject, we are of the considered  opinion that the complainant  has not able to establish any medical negligence or deficiency in service on the part of the OPs.  Though  complainant has taken steps to produce medical record from  Aravind Eye Hospital and thus  produced it, without any opinion of medical practitioner, we cannot come to a findings of medical negligence on the part of opposite parties.

    In the result, complaint fails and hence the same is dismissed.  No order as to cost.

Exts:

A1-Lawyer notice dtd.23/5/2017

A2&A3-Reply notice issued by  OPs dtd.6/6/2017

A4series-Medical bills(9 in Nos.)

A5-Discharge card

A6- Disability certificate issued by Dist.Hospital Kannur.

A7-Case record of Aravind Eye hospital

B1-Case sheet(medical records from OPs)

PW1- Preman.T.K- complainant

DW1-Dr.N.Sunil-1^st OP

Sd/                                                         Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR