By Smt. C.S. Sulekha Beevi, President,

This is a complaint alleging medical negligence.

1. Facts

On 26.4.2005 the complainant approached opposite party hospital with problem of vision of his eyes. He was seen by second opposite party doctor who prescribed medicines. After a few days he again consulted second opposite party who advised him to undergo surgery to the left eye. He was admitted in opposite party hospital on 5.5.2005 and a PHACO+IOL surgery was done to the left eye on the same day. He was discharged the next day. Complainant paid Rs. 5500/- towards charges. At the time of discharge the complainant was issued a post operative instruction chart. Complainant went for reviews as stated in the chart. He went for the first review on 12.5.2005. Review checkup was done on 26.5.2005 and 16.6.2005. It is alleged that complainant did not gain his vision after the surgery as assured by opposite party. When complainant again consulted second opposite party, he was advised to use spectacles on 15.7.2005. Though complainant used these glasses it did not improve his eye sight. Complainant then approached opposite parties and informed about the failure of surgery. But no satisfactory reply was given by opposite parties. He again consulted opposite party on 12.8.2007 with pain and illness in the eye. Second opposite party advised for further surgery of left eye, and was asked to pay Rs.5,500/- again towards charges. Complainant is unable to pay this amount. That he is suffering from sever pain and defective vision. That all this happened due to the negligence committed by opposite parties. Complainant issued lawyer notice to opposite parties, to which opposite parties send reply stating false contentions. Hence this complaint.

2. First opposite party who is the Managing Director of the hospital filed version submitting that opposite party hospital is well equipped with modern high tech machineries and equipments. That there are qualified and experienced doctors and staff. Opposite party admits that complainant first approached opposite party hospital on 26-4-2005. He presented complaints of defective eye sight in both eyes. On examination his visual acuity was 6/9 in right eye and 6/24 in left eye. He was diagnosed to have cataract in both eyes, and was advised to undergo surgery for cataract in the left eye, under guarded visual prognosis. Opposite party advised to undergo Pre-operative evaluation including Biometry and dilatation. Patient was not willing for dilatation since there was no bystander with him. He came the next day with a bystander and underwent Biometry. Intra ocular Tension recorded was 14.6 mm Hg with 5.5 gwt in both eyes. Nasolacrimal Ducts were patent in both eyes. After dilatation patient was examined by the retina specialist Fundus view was hazy due to cataract, discs were normal, foveal reflux was absent and rest of the details was not clear due to hazy view. He was advised cataract surgery under guarded visual prognosis in left eye. He under went cataract surgery in the form of Phaco with Intra Ocular Lens (IOL) in the left eye on 5-5-2005. Postoperative examination was within normal limits. He was discharged on topical medications on 06-5-05. On his subsequent follow up on 10-5-2005, 16-5-2005, 24-5-2005 and 30-5-2005 cornea was found to be clear and IOL in-situ. He was advised to continue Ocepred eye drops. On 19-6-2005 he came with complaints of pain and redness in left eye since 02 days. On examination cornea and anterior chamber was clear with IOL in situ. Fundus was normal. He was thus advised to continue Ocpered eye drops four times daily and to come for follow up after 2 weeks. On his follow up on 15-7-2005 his best corrected visual acuity was 6/6p in left eye. He was thus prescribed spectacles and to undergo phaco with IOL in right eye. Three months later (i.e. On 10 December 2005) he came with the complaints of redness and discharge in the left eye. He was advised Gatiflox eye drop. He then came again on 25 April 2006 with the same complaints and was advised Microflox eye drops thrice daily. On 30 Sep 2006 (i.e. After 06 months) he came with complaints of watering in left eye. On examination the nasolacrimal duct was patent and the rest of the eye was normal. He was thus advised to continue the same treatment and undergo phaco with IOL in the right eye. On his follow up on 05-10-2007 his corrected Visual Acuity was 6/6/p and he had complaints of watering in left eye. Nasolacrimal duct was patent in left eye. He was advised Lubrex DS eye drops twice daily. On his next follow up on 16-10-2007 he came with complaints of watering and occasional discharge in left eye. Duct in left eye was patent and PCIOL in left eye. He was advised Tobrex eye drops and lubrex eye drops.

3. The averment in the complaint that on 26.4.2005 opposite party prescribed medicines and advised to come for follow up is denied as false. As the complainant had no bystander on that day, he came the next day with bystander to undergo biometry. That after surgery he was advised to use spectacles with power which corrected the vision to 6/6 (P). The allegation that he approached opposite party doctor several times with complaint of pain and vision problem is denied. It is stated that much later he complained of watering from the eye and was prescribed with eye drops. He was given proper case and treatment. After the review on 30.9.2006 the complainant had come for consultation only after a period of one year ie, on 15.10.2007. That this would show that he had no complaints after the surgery. The allegation that opposite party advised for re-surgery of the left eye is denied. That opposite party has not given any such advise. Instead he was advised for cataract surgery to the right eye on 30.9.2006. But the complainant came only on 15.10.2007. That there is no negligence or deficiency on the part of opposite parties. That the compensation claimed is baseless.

4. Second opposite party is the doctor who treated the complainant as well as the Managing Director of opposite party hospital. Second opposite party has adopted and repeated the same submissions made in the version filed by first opposite party.

5. Evidence consists of the oral evidence of the complainant who was examined as PW1 and a witness examined on behalf of complainant. Opposite party was examined as DW1 and Ext B1 marked for opposite party.

6. Points for consideration

(i) Whether opposite parties are deficient in service.

(ii) If so, reliefs and costs.

7. Point (I)

The allegation of medical negligence assailed by the complainant is that the cataract surgery done to his left eye is a failure. That due to the negligence committed in doing surgery he is now suffering from watering in the eye pain and redness of the eye. His eyesight did not improve after surgery and opposite parties advised to use spectacles and later suggested a re-surgery.

8. Refuting the allegations of negligence it is submitted by opposite parties that the treatment and surgery done was in accordance with medical protocol and accepted medical practice. Prior to surgery the vision acuity in the left eye was 6/24 and after surgery it had improved to 6/6 which is normal vision. As only the distant vision was corrected the complainant was advised to use spectacles for reading purpose. He approached with complaints of watering in the eye much later. That such complaints can occur due to a number of reasons and these complaints have no nexus with the cataract surgery.

9. Complainant has not disputed the qualification, skill and experience possessed by second opposite party doctor who treated him. Therefore this point does not arise for consideration. The Managing Director of first opposite party hospital is the very same person who has treated the complainant and is arrayed as second opposite party in the complaint.

10. Admittedly the complainant approached second opposite party doctor for the first time on 26-4-2005 with complaint of defective vision. His ailment was diagnosed as cataract. In Ext.B1 case sheet it is noted that he has cataract in both eyes. The vision acuity on the date of first consultation is 6/9 (Rt eye) and 6/24 (left eye). The problem in left eye was more and he was advised for surgery to the left eye. The surgery done was PHACO with IOL. He was discharged the next day itself. Complainant has no allegations about the investigations done, pre-operative evaluations or the method of treatment/surgery adopted by opposite party. He has vaguely stated that the surgery is a failure and that it did not rectify his vision problem. He also complains that due to negligence in doing the surgery he is now suffering from pain in the eye, redness and watering in the eye. It is also the case of complainant that due to the failure of surgery opposite party advised to use spectacles and even the use of spectacles did not improve his vision.

11. The evidence adduced by the complainant who was examined as PW1 is not much convincing. The complainant himself is not sure about the allegations or complaints. He is not even able to depose about his age correctly. His evidence (PW1) is as under:

“Ext.A7-ലെ doctor എന്നെ പരിശോധിച്ചത് 27-4-2009-ന്ന് ആയിരിക്കാം. അന്ന് എനിക്ക് 60 വയസ്സായിരുന്നു എന്നു പറഞ്ഞാല്‍ കൃത്യമായി പറയാന്‍ എനിക്ക് അറിയില്ല. ഇപ്പോള്‍ എനിക്ക്53 വയസ്സായി എന്ന് കളവ് പറയുകയാണ് എന്നു പറഞ്ഞാല്‍ എനിക്ക് വയസ് സ്ഥിരം പറയാന്‍ അറിയില്ല. എനിക്ക് എത്ര വയസ്സായി എന്ന്എനിക്കറിയില്ല.”

"ഞാന്‍ എതൃകക്ഷി doctor-റെ ആദ്യം കണ്ടത് 26-4-2005-നാണ് എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. അന്ന് എന്‍െറ രണ്ടു കണ്ണുകളും എതൃകക്ഷി doctor പരിശോധിച്ചിട്ടുണ്ട്. എന്‍െറ വലതു കണ്ണില്‍ 6/9 -ഉം ഇടതു കണ്ണില്‍ 6/24-ഉം ആയിരുന്നു കാഴ്ച എന്നു പറഞ്ഞാല്‍ അറിയില്ല. കൂടുതല്‍ തിമിരം ബാധിച്ചത് ഇടതു കണ്ണിലായിരുന്നു എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. ആയതിന്ന് operation ചെയ്യാന്‍ നിര്‍ദ്ദേശിച്ചു. വിശദമായ biometry dialatation നടത്താന്‍ നിര്‍ദ്ദേശിച്ചിരുന്നു. അന്നത്തെ ദിവസം എന്‍െറ കൂടെ ആരും വന്നിരുന്നില്ല. അതുകൊണ്ട് കൂടെ ആളെ കൊണ്ടു പോയി പിറ്റെ ദിവസം ആ പരിശോധന നടത്തി എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. സത്യവാങ്മൂലത്തില്‍ ഞാന്‍ രണ്ടാമത് പോയത് കുറെ ദിവസം കഴിഞ്ഞാണ് എന്ന് എഴുതിയിട്ടുളളത് ശരിയല്ല. Operation -ന്നു മുമ്പ് മറ്റ് specialist doctor-മാരും കണ്ണ് പരിശോധിച്ചു. എന്‍െറ ഇടത് കണ്ണ് operation ചെയ്തത് 05-5-2005-ന്ന് ആണ്. ആ operation പേര് phaco emulsification and IOC implantation ആണ് എന്നു പറഞ്ഞാല്‍ എനിക്കറിയില്ല. എന്നെ പിറ്റെ ദിവസം തന്നെ discharge ചെയതിട്ടുണ്ട്. Operation-ന്ന് മുമ്പും operation-ന്ന് ശേഷവും ആവശ്യമായ പരിശോധനകള്‍ എല്ലാം നടത്തിയിട്ടുണ്ട്.”

"കണ്ണിന്നു വെളളം വരുന്നു എന്നു പറഞ്ഞ് ഞാന്‍ എതൃകക്ഷി ആശുപത്രിയില്‍ പോയത് 10-12-05-ന്ന് ആണ് എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. പിന്നീട് മരുന്നു വാങ്ങിക്കുവാന്‍ ചെന്നത് 4 മാസം കഴിഞ്ഞ് 25-4-2006-ന്ന് ആണ് എന്നു പറഞ്ഞാല്‍ സ്ഥിരമായി പറയാന്‍ എനിക്കറിയില്ല. പിന്നീട് 6 മാസം കഴിഞ്ഞും ഒരു കൊല്ലം കഴിഞ്ഞുമാണ് ആശുപത്രിയില്‍ ചെന്നത്എന്നു പറഞ്ഞാല്‍ അറിയില്ല.”

“15-7-2005-ന്ന് operation ചെയ്ത ഇടതു കണ്ണ് പരിശോധിച്ചപ്പോള്‍ കണ്ണിന്ന് കാഴ്ച തിരിച്ചു കിട്ടി കണ്ണ് ശരിയായിരുന്നു എന്നു പറഞ്ഞാല്‍ കണ്ണട വച്ചാല്‍ മാത്രമെ കണ്ണിന്ന് കാഴ്ച ഉണ്ടായിരുന്നുളളു. വായിക്കുവാന്‍ വേണ്ടിയാണ് കണ്ണട നിര്‍ദ്ദേശിച്ചത് എന്നു പറഞ്ഞാല്‍ കണ്ണിന്‍െറ കാഴ്ച കിട്ടാത്തതുകൊണ്ടാണ് നിര്‍ദ്ദേശിച്ച. 15-7-2005-ന്നാണ് കണ്ണട നിര്‍ദ്ദേശിച്ചത് എന്നു പറഞ്ഞാല്‍ ശരിയാണ്.”

12. Apart from a vague allegation that the surgery is not done properly the complainant has not stated any specific negligent act done by opposite party doctor or any act which was omitted to do by opposite party. It is well settled that it is not enough if medical negligence is pleaded but it should be established by cogent, acceptable as well as reliable evidence, including expert evidence. The onus lies upon the complainant. In the instant case, the complainant has not placed any expert evidence to suggest even remotely, that in what manner opposite party doctor has been negligent in rendering treatment.

13. PW2 is an ophthalmologist examined on behalf of the complainant. This doctor has issued Ext.A8 certificate. It is stated in Ext.A8 that complainant has complaints of pain, discharge and watering in the let eye. But PW2 deposed that he has not examined the complainant and had issued the certificate on request made by the complainant stating that he needed the certificate to produce it before his sponsor abroad. PW2 also deposed that such complaints are not connected with surgery and could be due to various external disorders, like allergic conditions, conjunctivitis etc.

14. The evidence of PW2 in this regard is as under:

“I have issued Ext.A8 on 09-3-2009. The complaints were persisting for two years. I do not know the exact date of cataract surgery. The patient asked me to give a certificate, stating all these complaints to produce before his sponsor abroad. As per the request of the patient the certificate was required to produce before sponsor at abroad for getting job. I have not examined the patient in detail. Biometric and dialatation examination were not done by me. Visual acuity was not tested. NO medicines were prescribed by me. I cannot say exactly the reasons for these complaints. Watering and pain can occur to any person due to many reasons. I have not examined the nasolacremal duct. Pump failure can also cause watering in the eye. These complaints were not connected with cataract surgery. In that case there would have been infection, severe pain, lid oedema, marked redness and loss of vision. It is correct to say that such symptoms will prolong only for a short period. Tear instability in aged persons is common. Posterior capsular opassification (PCO) can occur subsequently after cataract surgery. PCO is an accepted thing. It is correct to say both visions are corrected in cataract surgery. Normally distant vision is only corrected. Then the patients are required to wear spectacles. Correction of both visions is a costly procedure. Phaco emulsification and IOC implantation is the standard treatment of cataract. I agree to the suggestion that vision 6/24 before surgery and 6/6 after surgery means the patient has regained normal vision after surgery. 6/6 is the normal standard vision.”

15. On perusal of Ext.B1 it is seen that after surgery on 15-7-2005. he was advised for use of spectacles. The vision acuity of left eye is 6/6. Later on 27-9-2005 it is noted s 6/9. Prior to surgery it was 6/24. It is also noted in Ext.A8 that there is PCO in left eye (posterior capsular opassification). It is deposed by PW2 that PCO can occur after surgery. Nothing is brought out from the evidence of PW2 that the procedure carried out before or after surgery was against the line of treatment in medical science in such like ailments. A doctor as a professional does his best to ensure the well being of his patient. It can be shown that there is omission on the part of the doctor. It cannot be presumed that whenever an operation is unsuccessful or it completely fails it is always due to the negligence of the doctor concerned. Only thing to be seen is whether the standard of requisite care was taken by the doctor or not. There is no evidence to show that opposite party doctor fell below the standard of a reasonably competent practitioner in his field.

16. From the above discussions, materials and evidence placed before us and the settled principles on medical negligence we are able to hold that there is no medical deficiency on the part of opposite parties.

17. In the result we dismiss, the complaint. No order as to costs.

Dated this 11th day of August, 2010.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1 and PW2

PW1 : M.K. Ibrahim, Complainant.

PW2 : Dr. Santhi G Das, Consultant Ophthalmologist in E.M.S. Hospital, Perinthalmanna.

Documents marked on the side of the complainant : Ext.A1 to A8

Ext.A1 : Lawyer notice dated, 03-5-2008 issued by complainant's counsel to second opposite party.

Ext.A2 : Lawyer notice dated, 03-5-2008 issued by complainant's counsel to first opposite party.

Ext.A3 : Out patient cash receipt from opposite party to complainant.

Ext.A4 : Discharge Summary report from opposite party to complainant.

Ext.A5 : Cash receipts (4 Nos.) from opposite party to complainant.

Ext.A6 : Advance Cash receipts (4 Nos.) from opposite party to complainant.

Ext.A7 : Certificate given by Dr.Viji.K. George, Chief Consultant Eye Surgeon, Al-Shifa Hospital, Perintalmanna.

Ext.A8 : Certificate given by Santhi G. Das MS,DO , Consultant Ophthalmologist, EMS Memorial Co-operative Hospital and Research Centre Ltd. Perintalmanna.

Witness examined on the side of the opposite parties : DW1

DW1 : Dr. Muhammed Swadique, second opposite party.

Documents marked on the side of the opposite parties : Ext.B1

Ext.B1 : Patient record from opposite party Hospital.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER