PER SHRI. S.B.DHUMAL - HON’BLE PRESIDET :
1) In brief consumer dispute is as under –
That the Opposite Party No.1 is a well known Doctor and he is the Chairman of Opposite Party No.2 - Bombay City Eye Institute and Research Centre, engaged in Diagnosing and treating the eye ailments. On 19/03/2003, the Complainant consulted Opposite Party No.1 at Opposite Party No.2 Institute for the complaint of dimness of vision in his right eye. After examination, Opposite Party No.1 advised the Complainant to undergo Cataract Surgery in the right eye for advance mature cataract. The Opposite Party No.1 also advised Complainant to undergo several routine pre-operative investigations, which he did. The said investigations were found to be within normal limits. The Opposite Party No.1 scheduled the Complainant’s right eye cataract surgery on 05/06/2003, by phacoemulsification with the use of viscoat and Healon GV (soft shell technique) with foldable 15.0 D Acrysoft IOL implantation.
2) According to the Complainant on 05/06/03, during the said cataract surgery, a rent (tear) occurred in the posterior capsule of the eye for which Opposite Party No.1 performed a procedure called anterior vitrectomy and corneo-scleral suture to secure the wound. For the first time Complainant learnt that such a complication of tear had occurred in his eye during the said surgery only through the case summery provided to him by Opposite Party No.2. After cataract surgery the Opposite Party No.1 had reassured the Complainant that everything was fine and had not even informed him about the said complication. It is alleged by the Complainant Opposite Party No.1 deliberately and negligently failed to inform the Complainant about the clinical developments in his case, and likely complications associated with it. Instead, Opposite Party No.1 merely prescribed some medicines, including antibiotics, pain killers and anti-inflammatory agents and asked the Complainant to come for follow-up visits.
3) It is submitted by the Complainant that post-operatively, he was examined on 06/06/03 and 09/06/03 at Opposite Party No.2 Institute and was found to be fine, except that he has suture irritation and therefore, corneo-scleral suture was removed on 09/06/03. According to the Complainant, said suture were removed by some junior doctor at Opposite Party No.2 Institute with bare hands, without even wearing gloves. Such a negligence and careless way of handling the Complainant was in total disregard of the fact that the Opposite Party No.1 ought to have insured and observed aseptic measures, while dealing with delicate structure like eye, which had been recently operated, particularly in view of the complications of posterior capsule tear having occurred.
4) It is submitted by the Complainant that within 5 days after cataract operation on 05/06/03, contrary to his expectations of re-gaining good vision in the right eye to his utter shock and disbelief on 10/06/03, he developed sudden loss of vision in the early hours of morning. Then the Complainant without loosing any time rushed to Opposite Party No.2 Institute. Upon examining the Complainant, Opposite Party No.1 informed him and re-assured that there was no need to panic as the vision was only temporarily lost due to minor inflammation in the operated eye which would subside after putting the eye drops. Opposite Party No.1 advised the Complainant to instill several eye drops in his eyes at regular time intervals, which included anti-inflammatory and anti-biotic medicines and asked to come for follow-up after 5 hours. It is contended that Opposite Party No.1 had given one medicine namely, Okacin eyes drops for the Complainant’s use from Opposite Party No.2. It is submitted that even at the stage Opposite Party No.1 did not informed the Complainant that such a posterior capsule tear had occurred in his right eye during surgery and/or did not advice him to take any precautions. It is submitted that Opposite Party No.1 negligently failed to consider the probability of the loss of vision due to infection. The Opposite Party No.1 also negligently failed to inform the Complainant that if not ‘inflammation’ it could likely be a complication in the form of ‘infection’ which could compromise the structure and function of his eye forever, the Complainant in good faith started putting Okacin and other eye drops in his eye as advised by Opposite Party No.1. However, even after putting four types of eye drops, every 15 minutes for 5 hours, in the eye, neither did the so-called ‘inflammation’ reduced nor was the vision restored. When the Complainant went for the follow-up visit, the Opposite Party No.1 suggested the Complainant that he should consult a vitrectomy surgeon. Opposite Party No.1 did not disclose anything else to the Complainant at that time. As per advice of Opposite Party No.1, the Complainant on the same day consulted Dr. Vatsal S. Parikh, a Specialist in disease of vitreous and retina, lasers and ultra sonography and micro surgery of eye, practicing at Drushti Eye and Retina Centre and Rajvi Nursing Home. Dr. Parikh, after examination the Complainant diagnosed the Complainant has “acute post-operative endophthalmitis” following phaco with “IOL”. He explained to the Complainant that the Complainant had severe infection in the operated right eye.
5) It is submitted that when the Complainant visited said Dr. Parikh’s clinic on 10/06/03, he was shocked to learn that said Okacin eye drops which he had been given by Opposite Party No.1 earlier during the day, was already beyond its expiry date as pointed out to him by the staff as said Dr. Parikh’s clinic. It is submitted that aforesaid facts clearly showed the negligent and callous attitude of the Opposite Party No.1 while dealing with the Complainant.
6) According to the Complainant, Dr. Parikh immediately sent an aqueous tap from his right eye for smear and PCR tests which reported positive for bacterial and fungal growth in the Complainant’s right eye. Dr. Parikh explained the Complainant that it needed urgent intervention, and if it is not tackled immediately, the Complainant could loose the eye. Dr. Parikh immediately performed IOL sparing vitrectomy the same night also immediately started administration of necessary medicines. However, inspite of such prompt treatment, Dr. Parekh, the infection was so serious in nature and was growing so rapidly that by 15/06/03, the Complainant had to undergo vitrectomy once again, and IOL explanation. It is contended that various laboratory test and culture report showed that infection was due to pseudomonas, klebsiella and fungal organisms.
7) As per the Complainant due to the recurrent nature of infection, although he improved intermittently, the organisms continued to persist in his right eye just over a period of three months, he had re-infection in the eye with pseudomonas, five times, with total loss of vision. The Complainant was required to take higher antibiotics and other medicines intravenously and repeatedly undergo vitrectomy. It is submitted that on 08/09/03, the Complainant developed retinal detachment in the right eye and had to undergo pneumoretinoprexy and laser treatment. However, his retina settled only for a short while. After 8 days, his retina detached once again and he had to undergo revitrectomy, membrane removal, silicone oil instillation and scleral buckling surgery on 16/09/03. On 03/10/03, the Complainant had 6th episode of re-infection and by 15/10/03 inspite of treatment complainant developed defective vision and pain the operated eye.
8) In such circumstances, the Complainant was constrained to consult Dr. Lingam of Sankara Netralaya, Chennai, as well as consult ophthalmologists at U.S.A. from 31/10/03 to 23/11/03. The Complainant suffered constant mental agony, anxiety for the eye and incurred financial expense to undergo multiple surgeries for endophthalmitis in the right eye and seek expert consultation. According to the Complainant, even presently his vision is extremely poor and thereby hampering not only quality of his life but also it is a grave obstacle in conducting his social and business activity. He is under medication and has to periodically go to Dr. Parikh to check if there is any further deterioration in the eye due to multiple surgeries is under constant mental stress and apprehension that he may have retinal detachment and loss of eye forever.
9) The Complainant had send Opposite Party No.1 letter dtd.01/10/03 & 29/10/03 but Opposite Party No.1 failed to reply which according to the Complainant clearly brought out the failure on the part of Opposite Party No.1 as well as Opposite Party No.2 to maintain hygienic and infection-free sterile conditions conducive for operation and post-operative treatment, directly resulting in complications in the case of and it amounts to gross negligence and deficiency in service on the part of Opposite Party No.1 & 2.
10) It is alleged by the Complainant that Opposite Party No.1 failed to exercise reasonable standards of care, skill and caution expected of a specialist while dealing with Complainant’s case which amounts to recklessness, negligence and serious deficiency in service, which directly resulted in permanent damage to the structure and function of Complainant’s eye. According to the Complainant Opposite Party No.1 has deliberately and/or negligently not mentioned anywhere in the case record a tear in the posteriors capsule had occurred during the surgery, except only in case summery. Further Opposite Party No.1 has negligently failed to inform the Complainant that such a tear is attendant with the risk such as, infection in the eye, which he ought to have done. Opposite Party No.1 was negligent in failing to foresee the reasonable probability of complication due to ‘infection’ and not ‘inflammation’. It is contended that Opposite Party No.2 is vicariously liable for the negligence act of Opposite Party No.1 and negligent act of the Jr. Doctor who removed the sutures.
11) The Complainant sent a legal notice to the Opposite Parties dtd.06/04/04. Opposite Party have given reply to the said notice vide their letter dtd.02/05/04 making evasive denials to the allegations made by the Complainant. The Opposite Party did not comply with notice and so the Complainant has filed this complaint.
12) The Complainant has prayed to direct Opposite Parties to pay to the Complainant Rs.7 Lacs alongwith interest @ 18% p.m. from the date of operation i.e. from 05/06/03 for the cost of various operations and medical treatment and medicines, etc. to the Complainant. The Complainant requested to direct Opposite Parties to pay Rs.3 Lacs for his ongoing medical treatment. The Complainant has claimed Rs.7 Lacs for compensation for mental agony and trauma experienced by the Complainant as well as his family members. Further, the Complainant has requested to direct Opposite Party to pay to the Complainant Rs.25,000/-towards cost of present complaint and Rs.50,000/- towards mental harassment and torture.
13) Alongwith complaint complainant has filed copies of documents marked at Exh. ‘A’ to ‘N’ and his affidavit in support of the complaint.
14) Opposite Party No.1 Dr. Kulin Kothari has filed his written statement and thereby resisted claim of the Complainant contending interalia that the Complainant has filed his complaint with intention to tarnish his image. The complaint is based totally on presumptions and conjectures drawn by the Complainant and not based on any cogent and valid documents or opinion. The complaint is totally false, frivolous and vexatious and deserves to be dismissed with cost. It is submitted that the Complainant has suggested total falsehood solely to suit his convenience.
15) It is submitted by Opposite Party that in the complaint the Complainant has falsely averred that he was not informed about the complications related to cataract surgery. Further it is falsely alleged that the Complainant was not informed about the posterior capsular rent and related complications. According to Opposite Party No.1, he had given aforesaid information to the Complainant and in support of his contention he has relied upon consent form and discharge card annexed to written statement. According to the Opposite Party, the Complainant has falsely alleged that no proper precautions were taken while removing sutures. It is submitted that removal of sutures may it be post heart surgery or eye surgery, sutures are removed with aseptic precautions and gloves may not be used. The Complainant has falsely alleged that even on 10/06/03, he was not informed about capsular tear. As per Opposite Party No.1, he himself informed the Complainant about the capsular tear in the post operative period but on 10/06/03, Dr. Sandeep Thakur – Vitreo-retinal surgeon in-house Bombay City Eye Institute & Research Centre also informed the Complainant about the same. Dr. Sandeep Thakur put the Complainant on aggressive course of antibiotics and steroids with joint consultation with Opposite Party No.1. On 10/06/03 at 4.00 p.m. when patient was reviewed again, his condition had not deteriorated but there was no significant improvement also. Therefore, Opposite Party No.1 and Dr. Sandeep Thakur explained everything in detail to the Complainant and suggested second opinion by another vitreo-retinal surgeon who was called and briefed about the situation in presence of Complainant and his relatives.
16) Opposite Party No.1 has denied allegations that eye drop given to the Complainant had expired. It is submitted that presuming without admitting that the expired eye drops was given in that case the Complainant must have gone to the police station and lodged complaint to the police and handed over so called expired eye drop bottle to the police, which the Complainant has not done.
17) It is submitted by the Opposite Party the environment where the Complainant was operated was good. He has denied allegations in that respect made by the Complainant submitting that on 05/06/03 in the very place 15 patients (including the Complainant) were operated and nobody else had endophthalmitis. Moreover no other patient operated on the day before i.e. on 04/06/03 and day after i.e. on 06/06/03 developed any infection. Opposite Party No.1 has annexed list of the patient’s names operated on the same day, previous day and next day.
18) It is submitted that Opposite Party No.1- Dr. Kulin Kothari after MBBS passed his DOMS in 1979 with a Gold Medal. In 1980 he passed his MS and was further trained in USA, UK and Germany in the fields of Cataract, Glaucoma and Refractive Surgery. He is practicing Ophthalmology for last 25 years and is actively involved in academics. Opposite Party No.1 has received multiple awards. Opposite Party No.2 Institute has been recognized by Government of India as a Centre under National Programme for Control of Blindness. Opposite Party No.2 is a Private Ltd. Company and Opposite Party No.1 is the Chairman of Opposite Party No.2.
19) As regards bacteriological consideration, it is submitted that eye infections-Endophthalmitis post-operatively infection can be transmitted to the eye-ball either due to a exogenous cause or due to endogenous infections being transmitted to the eye ball. In the instant case no patient who were operated in Opposite Party No.2 institution on 04/06/03, 05/06/03 or 06/06/03 got Endophthalmitis when one isolated case gets infected and no other case operated in the same environment gets infected so the infection is more likely to be due to endogenous organisms as in the instant case.
20) It is submitted that Complainant had come to Opposite Party No.2 Institute of 19/05/03 with complaint of diminished vision in the right eye. He had past history or wearing myopic spectacles sine childhood. After careful examination the Complainant was operated for right eye cataract surgery by phacoemulsification with the use of Viscoat and Healon GV (soft shell technique) with a foldable + 15.0 D Acrysoft intra ocular implant (IOL) implantation on 5th June, 2003. Intra operatively there was a posterior capsular rent probably due to a posterior polar cataract with inherent weak posterior capsule. Proper anterior vitrectomy was done. Corneo-scleral suture was taken for additional security of the wound closure. IV Broad Spectrum antibiotic dose was administered as additional precaution. Post-operatively Complainant was examined on next day. Slit lamp examination revealed clear cornea and well centered IOL. Opposite Party No.1 has given details of the treatment given by him alongwith other doctors to the Complainant.
21) Opposite Party No.1 has denied all the allegations made in the complaint, submitting that there was no negligence or deficiency in service on his part while treating the Complainant. All other standard protocols were followed. Instead of taking further treatment the Complainant himself stopped visiting Opposite Parties. Opposite Party No.1 has given reply to the notice send by the Complainant therefore the complaint be dismissed with cost. In support of written statement Opposite Party No.1 has filed affidavit.
22) Opposite Party No.2 has filed written statement and thereby resisted claim of the Complainant contending that complaint is false and frivolous. Opposite Party No.2 has raised similar contentions as raised in written statement of Opposite Party No.1. As regards Opposite Party No.2 hospital it is submitted that it is full fledged eye hospital and provides Ophthalmic care to all people. The hospital has 3 beds and it functions as full fledge eye hospital. It has Diagnostic Centre with latest ophthalmic investigatory facility and outpatient department. The Operation Theater has state of the art instruments. The Operation theatre premises are cleaned washed and fumigated on daily basis. Opposite Party No.2 has also submitted Complainant has made false allegation and suppressed material facts and therefore complaint deserves to be dismissed with cost. On behalf of Opposite Party No.2 – Dr. Kulin Kothari has filed his affidavit in support of written statement.
23) Alongwith written statement the Opposite Parties have filed medical case papers of the treatment given to the Complainant, extract of medical literature, names of the patient operated in Opposite Party No.1 on 05/06/03, 04/06/03 and 06/06/03. The Opposite Party has filed affidavit of Dr. Vatsal Parikh, expert opinion of Dr. Ashish Vaidya, affidavit of Dr. Sandeep Thakur, affidavit of Dr. Anurag Agarwal, etc.
24) The Complainant has filed affidavit-in-rejoinder in respect of written statement field by the Opposite Party No.1 & 2 and thereby denied allegations made by both the Opposite Parties. The Complainant has produced copy of case summery noted by Dr. Vatsal Parikh on 31/10/03. The Complainant has filed affidavit of evidence and alongwith his affidavit he has produced copies of number of documents. The Complainant has filed written argument. Opposite Party has also filed written argument. On 29/09/2011, the Complainant was personally present. However, he has stated that his written submission may be treated as oral argument. We heard oral submissions of Complainant and Prof. Shenoy for the Opposite Party.
25) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved medical negligence or deficiency in service on the part of Opposite Party
No.1 & 2 ?
Findings : No
Point No.4 : Whether the Complainant is entitled for relief from Opposite Parties as prayed for ?
Findings : No
Reasons :-
Point No.1 :- Following facts are undisputed fact that on 19/03/03 the Complainant consulted Opposite Party No.1- Dr. Kulin Kothari at Opposite Party No.2 Bombay City Eye Institute for dimness of vision in his right eye. Opposite Party No.1 examined the Complainant and advised him to undergo Cataract Surgery in the right eye for the advanced mature cataract. Opposite Party No.1 had advised him to undergo several routine pre-operative investigations which the Complainant did. On 05/06/03, the Complainant underwent cataract surgery in the right eye for the mature cataract which was performed by the Opposite Party No.1 himself at Opposite Party No.2 Institute. Surgery was done by phacoemulsification with the use of Viscoat and Healon GV (soft shell technique) with a foldable + 15.0 D Acrysoft intra ocular implant (IOL) implantation. It is not in dispute that during the surgery the rent (tear) occurred in the posterior capsule of the eye, for which Opposite Party No.1 performed a procedure called anterior vitrectomy and corneo-scleral suture to secure the wound. It is admitted fact that post-operatively, the Complainant was examined on 06/06/03 and 09/06/03 at the Opposite Party No.2 Institute and was found to be fine, except that suture irritation and therefore corneo-scleral suture was removed on 09/06/03.
It alleged by the Complainant that for the reasons best known to the Opposite Party No.1, Opposite Party No.1 did not inform the Complainant about the complications that may arises in cataract surgery and did not disclose to the Complainant complications which took place during cataract operation on 05/06/03. It is alleged that Opposite Party No.1 did not even advise him to take any precaution to avoid infection in view of posterior capsule tear. Instead, Opposite Party No.1 re-assured the Complainant that everything was fine and prescribed some medicines including antibiotics, pain killer and anti-inflammatory agent and the Complainant asked to come for follow-up visits. Opposite Party No.1 has denied the aforesaid allegations. It is submitted that Opposite Party No.1 had explained to the Complainant regarding complications associated with such a cataract surgery. Prof. Shenoy has referred to consent form copy of which is produced at Exh.58 submitted that risk associated with cataract surgery was explained to the Complainant and it can be verified from the contents of consent form singed by the Complainant. It is further submitted that Opposite Party No.1 had explained to the Complainant about the complications i.e. capsular tear occurred during the course of surgery. In support of contention Prof. Shenoy has relied upon discharge summery case papers.
It is submitted that the Complainant had made false allegations that on 10/06/03 at Dr. Parikh’s clinic Complainant came to know about tear in the posterior capsule and about the infection. It is submitted that the Complainant was informed about the complication of cataract surgery and was also informed about posterior capsular and proper anterior vitrectomy was done. Even according to the Complainant, post-operatively he was examined on 06/06/03 and 09/06/03 at Opposite Party No.2 Institute. On 09/06/03, slit lam examination once again revealed normal anterior segment, well centered IOL and pin hole vision of 6/9. Opposite Parties have filed affidavit of Dr. Sandeep Thakur who is practicing as a viteo-retinal surgeon. He has stated that he is attached of Opposite Party No.2 Institute for more than last 2 years. On 10/06/03, the Complainant was referred to him for opinion by Dr. Kulin Kothari. He heard history of the patient and thoroughly examined operated eye of the patient, as the operated eye singes of infection. After consultation with Dr. Kulin Kothari, he started a vigorous course of antibiotics and steroids. Considering the medical record of the Complainant produced by the Opposite Party and facts of this case, we do not find substance in the allegations of the Complainant that Opposite Party No.1 deliberately and negligently failed to inform the Complainant about the clinical development in his cases.
It is alleged in the complaint that on 09/06/03 corneo-scleral suture was removed but said sutures were removed by some Junior Doctor at Opposite Party No.2 Institute with bare hands, without even wearing gloves. Such negligent and carelessness way of handling of Complainant amounts to deficiency in service. As per the Complainant, it is medical well known that such a posterior capsule predisposed the patient develop infection in the eye. It is submitted on behalf of Opposite Party that aforesaid allegations made by the Complainant are misconceived and false. It submitted that sutures were removed with all aseptic precautions. According to Prof. Shenoy, all over the world when it comes to removal of sutures, may it be post heart surgery or eye surgery. Sutures are removed with aseptic precautions and glows are not used. In support of his contention he has relied upon affidavit of medical expert opinion of Dr. Ashish Vaidya alongwith written statement. Dr. Ashish Vaidya who is practicing Endophthalmitis and who is passed FCR and Fellowship in vitreo-retinal disease from Sankara Netralaya, Chennai, as stated in his opinion. Further he has referred affidavit of Dr. Anurag Agarwal who is passed MS Ophthalmologist. Dr. Anurag Agarwal in his affidavit has stated that on 09/06/03 under the instructions of Opposite Party No.1 as the wound was well apposed and the Complainant was complaining of pricking sensation, he removed sutures under total aseptic precautions. He has stated that the instruments used by him to remove sutures were ought to clear and his hands were thoroughly scrubbed. According to Dr. Anurag Agarwal whilst removal of suture it is only the autoclave instruments that touch the eye and the human hand does not touch the eye ball. According to Prof. Shenoy, necessary precautions were taken while removing the suture and there are no substances in the allegations made by the Complainant.
It is alleged by the Complainant that he received infection at Opposite Party No.2 Institute. According to the Opposite Party, the aforesaid allegations made by the Complainant are baseless and totally false. It is submitted by Prof. Shenoy the Complainant that any infection that is received by an individual can come from only two sources, 1) exogenous i.e. from OT and 2) endogenous i.e. from the patient himself. It is vehemently submitted on behalf of Opposite Party that operation theater and premises of Opposite Party No.2 Institute are clean, washed and fumigated on daily basis. Opposite Party has relied upon experts evidence of Dr. Ashish Vaidya who has passed FRCS and Fellowship in Vitreo-retinal diseases from Sankara Nethralaya, Chennai. As stated in his affidavit that he has read case papers of Dr. Sudhir Anandpara and given his opinion for assist this Forum. According to Dr. Ashish Vaidya, before giving opinion he has taken instruction of Opposite Party No.2 Institute, its operation theater, its autoclave set up & procedure adopting during pre and post-operative period. He has stated that endophthalmitis can be caused due to the variety of reasons. There are exogenous causes where the environment plays an important role and there are endogenous causes organism heart board by the patent himself are the infecting organisms. If the environment is response for the endophthalmitis then all patient operated on the same day, in the same environment must get infected by the same organism. The Opposite Parties have produced list of in all 15 patients operated at Opposite Party No.2 Institute on 05/06/036 including the Complainant. List of patient operated on 04/06/03 and 06/06/03 on Opposite Party No.2 Institute and submitted that none of the patient, complaint about the infection. In the instance case the Complainant suffered infection which was endogenous.
It is alleged by the Complainant within 5 days after cataract operation contrary to his expectation on 10/06/03 he developed sudden eye loss vision in the early hours of morning. Therefore, the Complainant immediately rushed to Opposite Party No.2 Institute. Upon examining Complainant, Opposite Party No.1 informed the Complainant that there was no need to panic as the vision was only temporarily lost due to minor infection in the operated eye which would subside after putting the eye drops. It is submitted by the Complainant that Opposite Party No.1 then advised the Complainant to instill several eye drops in his eyes at regular time intervals. Accordingly the Complainant instilled several eye drops and come for a follow-up after 5 hours. Opposite Party No.1 gave one medicine namely, Okacine eye drops for the Complainant’s use, from Opposite Party No.2 but did not inform that such a posterior capsule tear had occurred during his right eye surgery. Opposite Party No.1 then suggested to the Complainant to consult a Vitrectomy Surgeon. Then the Complainant immediately went to Dr. Vatsal S. Parikh. Opposite Party has denied allegations that Opposite Party No.1 did not discuss with the Complainant that a posterior capsule tear had occurred during right eye surgery. However, it is not disputed that Opposite Party No.1 had advised to instill several eye drops in the right eye and then advised to consult Vitrectomy Surgeon. Opposite Party has vehemently denied allegations that bottle of expired Okacine eye drops was given to the Complainant. Even though the Complainant has alleged that expired Okacine eye drop bottle was given, the Complainant has not adduced any evidence to support his contention. In case, Okacine eye bottle was after its expiry date given to the Complainant as alleged then in that case Complainant must have lodged complaint to the police as it was serious matter. The Complainant has not produced so called expired Okacine eye drop bottle before the police nor before this Forum. He has not even disclosed the name of staff of the Dr. Pariksh’s clinic who told that it was expired eye drop bottle. In this case, Dr. Vastal S. Parikh has filed affidavit in support of Opposite Party and he has not supported the aforesaid allegations made by the Complainant. Therefore, want of reliable evidence we do not find any substance in the aforesaid allegations made by the Complainant.
It is to be noted that the Complainant has made allegations of medical negligence and deficiency in service against Opposite Parties, however, he has not produced expert’s evidence to support his allegations. It is admitted fact that on 10/06/03, the Complainant went to Dr. Vastal Parikh for further medical treatment. Dr. Vatsal Parikh who passed MS and did his Vitreo-retinal fellowship at Sankara Nethralaya, Chennai and practicing as Ophthalmologist since last 20 years, has filed his affidavit on behalf of Opposite Parties. He has not supported the allegations made by the Complainant. As per Dr. Vstsal Parikh, the Complainant had come to him post-operatively with inflammation and endophthalmitis of his right eye and he has undertaken further treatment of Complainant’s eye. According to Dr. Parikh, during extraction of these kinds of cataracts, there is a risk of rapture of an inherently weak posterior capsule. A rent in the posterior capsule also does not per se cause endophthalmitis. He has stated that Ophthalmologists all over the world always put the patients on antibiotics post operatively and this they do as a matter of abundant precaution. In the instant case same precautions were rightly taken. Further he has stated that endophthalmitis can be caused due to a variety of reasons. There are exogenous causes where the environment plays an important role and there are the endogenous causes where organisms harbored by the patient himself are the infecting organisms. According to the Dr. Vatsal Parikh, if the environment is responsible for the endophthalmitis then all patients operated on the same day, in the same environment must get infected by the same organism. Dr. Parikh has concluded his opinion stating that “under the situation there cannot be negligence or deficiencies in doctor’s services.” At the most one can label it as a pure mis-adventure. Another Dr. Ashish Vaidya, Dr. Sandeep Thakur and Dr. Anurag Agarwal have supported case of the Opposite Party that there was no medical negligence or deficiencies in service. Prof. Shenoy has further referred to us medical literature produced by the Opposite Party. The Hon’ble Supreme Court in Jacob Mathew … Petitioner V/s. State of Punjab & Anr. … Respondent, reported in 2005(3) CPR 70 (SC) have observed “He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence.”
Considering evidence on record, we hold that the Complainant has failed to prove allegations of medical negligence or deficiencies in services on the part of Opposite Party No.1 & 2. In the result we answer point no.1 in the negative.
Point No.2 :- As discussed above, the Complainant has failed to prove medical negligence or deficiencies in services on the part of Opposite Parties. Therefore, the Complainant is not entitled for recovery of medical expenses, compensation or any other relief from the Opposite Party. Therefore, we answer point no.2 in the negatively.
For the reasons discussed above, complaint deserves to be dismissed. Therefore, we pass following order -
O R D E R
i.Complaint No.111/2005 is hereby dismissed.
ii.No order as to cost.
iii.Certified copies of this order be furnished to the parties.
