Order-9.

Date-09/11/2016.

This is an application u/s.12 of the C.P. Act, 1986.

The factual matrix of the case of the Complainant in brief is that on 18.10.2014 the Complainant approached OP No. 1, Professor Dr. Pradip Kumar Saraf, an Eye Specialist for treatment in her left eye with problems of flash and blindness on the eye and after proper check-up/ examination of the Complainant, the OP No. 1 advised the Complainant to undergo the ‘CATARACT removal operation’ to cure the problem of the eye of the Complainant. The Complainant accordingly, as advised by OP No. 1 underwent operation by OP No. 1 on 09.04.2015. After operation, the Complainant felt that she lost her eye vision in her left eye in respect of which OP No. 1 performed Cataract operation. The Complainant thereafter again went to the OP No. 1 for check-up on 02.03.2015 and OP No. 1 advised her to undergo for OCT (RETINA) test. The Complainant underwent OCT (RETINA) test and the report of such test indicated Macula hole in the Retina of the Complainant. OP No. 1 told the Complainant that Macula hole has developed in the eye of the Complainant and referred the Complainant to Dr. S. Sinha for proper treatment. The Complainant, thereafter, went to SankarNethralaya at Kolkata and thereafterto  Hyderabad at L.V.Prasad Eye Institute. At Hyderabad, the said Eye Institute observed that the eye vision of the Complainant has been damaged 100 percent due to Cataract Operation. The Eye Institute at Hyderabad, however, tried their best to recover the visionary capacity of the Complainant. The Complainant had to spend an amount of Rs.2 lakhs for treatment at Eye Institute at Hyderabad.  After the treatment at Hyderabad, the Complainant regained vision to the extent of 20 percent only. The Complainant alleges that she is having 80 percent visionary problem in her left eye. It is the case of the Complainant that Ops have caused permanent damage to the left eye of the Complainant. The Complainant alleges that she has spent about Rs.1 lakh for the treatment by the OP  No. 1 and 2. OP No. 2 is M/s health point where the surgery of the Complainant took place. Hence, this case.

          The Complainant has prayed for Rs.12 lakhs for damages of her left eye along with other reliefs.

          One SubirSen, a representative of OP No.1 appeared in this case as per authorization of OP No. 1, but subsequently, failed to file w.v., OP No.1 did not contest the case, as such,the case has proceeded ex parte against the OP No.1.

The OP No. 2 has neither appeared in this case nor contested the case. The case has also proceeded ex parte against the OP No. 2.

Point for Decision

1)       Whether the OPs are guilty of medical negligence?

2)       Whether the Complainant is entitled to get the relief as prayed for?

Decision with Reasons

          We have perused the photocopies of documents on record i.e. the prescriptions issued by OP No. 1, Professor Dr. Pradip Kumar Saraf, dated 18.10.2014, 02.03.2014 and 27.12.2014, photocopy of money receipts issued by OP No. 2.

          It is worthy to point out that no expert medical opinion is forthcoming before us at the instance of the Complainant or any of the Ops. In fact anauthorised representative of OP No. 1 appeared in this case. Subsequently, he failed to turn up.

 None entered into appearance on behalf of the OP No. 2.

          The recitals/version in the petition of the Complainant remain unchallenged and uncontroverted. From the documents on record we find that the Complainant has incurred an expenditure of Rs.32,700/- for surgery +

Rs.800/- for the test for OCT Retina-Optical Coherence Tomography + Rs.311.13 for cost of medicines. From the prescription dated 02.03.2015 by OP No.1,it appears that OP No.1 developed Macula hole in her left eye. The Complainant however, thereafter, failed to repose trustupon OP No. 1 and rushed to Hyderabad at L.V.Prasad Eye Institute, where she was treated and as stated by the Complainant she regained vision by 20 percent and lost 80 percent vision permanently. We are afraid, no discharge certificate of L.V.Prasad Eye Institute at Hyderabad is forthcoming before us. The Complainant has not filed any document of treatment at L.V.Prasad Eye Institute, Hyderabad, in support of her contention. In absence of any medical document, we are confused and at a loss to come to any conclusion whether the Complainant lost her vision to the extent of 80 percent in her left eye or not or whether such partial blindness occurred due to the faulty surgery by OP No. 1. Be that as it may,the version of the Complainant as illustrated in the petition of the complaint remains unchallenged, and uncontroverted.

          The law is for the vigilant and for the dormant.

          We have no medical expert opinion before us whether the Complainant has gone partial blindness or not as a consequence of the faulty surgery by OP No. 1 or due to any infection developed during the operation at the Nursing Home being OP No. 2. We, however, find no grievances or allegation against the OP No. 2. There is no categorical grievance against the OP No. 2 within the four corners of the petition of the Complainant.

The OP No. 1 however, has not defended himself or come upon with any defence challenging the case of Complainant. In absence of uncontroverted materials on record and having regards to the documents lying with the record, we think that the Complainant is entitled to get the relief as prayed for. We consequently, hold that the OP No. 1 is guilty of medical negligence in performing the surgery of the Complainant on the fateful date i.e. on 09.04.2015.

          Let us now come to the quantum of compensation / award.The Complainant has not filed any document to show that she has incurred an expenditure of Rs.2 lacs for her treatment at L.V. Prasad Eye Institute at Hyderabad. From the document on record, we find that, the Complainant has incurred expenditure of Rs.42,700/-  for surgery in the hand of the OP + Rs.800/- for test of  OCT (Retina),  + Rs.400/- for cost of medicines etc. Be that as it may, it is very unfortunate that the Complainant lost her eye vision in her left eye by 80 percent. We feel that the Complainant should be compensated adequately for such loss and damage.

In the result, the case succeeds in part.

Hence,        

Ordered

          That the instant case be and the same is allowed ex parte, but on merit against OP No.-1.

OP No.-1 is directed to pay an amount of Rs.4 lakhs to the Complainant as compensation, apart from litigation cost of Rs.5,000/- within one month from the date of passing this order.

          We make no order against OP No. 2, being the Nursing Home.

Failure to comply with the order will entitle the Complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OP shall be liable to pay penal damage  at the rate ofRs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.