Sri B.NARAYANAPPA,

     President

1. The complainant Sri. K.S. Shivakumar has filed this complaint against the opposite party No.1 Sushrutha Eye Hospital, Mysuru and opposite party No.2 Dr. Prabhu, Mysuru praying to direct the opposite parties to pay compensation of Rs.20,00,000/- along with interest @ 12% p.a. and costs.   

2. The brief facts are that:-

The opposite party No.1 is one of Eye Hospital in Mysuru city.Opposite party No.2 is an eye specialist and surgeon in opposite party No.1.The complainant visited opposite party No.1 on 09.09.2016 (MRD No.V.0149264) due to suffering from pain in his left eye.Opposite party No.2 after checkup, gave medicine for one week.In spite of taking medicine for one week, ache in his left eye was not cured.Opposite party No.2 advised the complainant to undergo for surgery otherwise it would be very difficult in future and as per the demand by opposite party No.2 the complainant deposited Rs.9,500/- to opposite party No.1 as surgery charges.After all kinds of formalities of tests, the surgery was conducted on 24.10.2016 and treatment continued.Prior to operation, the vision was very clear, only he was suffering from ache in his left eye.After surgery vision was not clear and the pain was not come down and it is further case of the complainant that again opposite party No.2 conducted second time surgery on 17.11.2016 even after second surgery the vision did not improved.Then opposite party No.2 referred for 2^nd opinion to Dr. Jyothi Shetty, Bangaluru.It is further contended that Dr. Gowri, Eye Specialist, Prabhu Eye Clinic and Research Center, Bengaluru diagnosed that no nerves problem, but surgery was conducted by opposite party No.2 was wrong due to that the vision has gone and the doctor said that it could have been cured by medicine only surgery was not necessary and further told that even if further operation was done there is no chance of restoring of vision because the earlier operation conducted by opposite party No.2 was not proper and care.It is further contended that left vision of the complainant is not clear, it is partially blindness due to wrong diagnose and wrong surgery by opposite party No.2.The complainant is a practicing advocate, due to the negligence and wrong diagnose is unable to do his normal work and he suffering from mentally, physically as well as economically due to medical negligence.It is further contended that the complainant has deposited Rs.9,500/- as operation charges and incurred Rs.20,000/- for medicine and Rs.6,000/- for medical expenses at Bangaluru Prabhu Eye Clinic.Therefore he contends that the service of opposite party No.2 is lack of deficiency.Hence, both opposite parties will have to pay compensation of Rs.20,00,000/- along with interest@ 12% p.a. and cost.Hence, this complaint.

3. After registration of this complaint, notices were ordered to be issued to opposite party Nos.1 and 2.  In response to notices the opposite party Nos.1 and 2 appeared before this Forum through its counsel and have filed their version in detail.  Admitting that the opposite party No.1 is the Hospital owned by opposite party No.2 and contended that the complainant is not mentioned the line of treatment correctly.  On 09.09.2016 for the 1^st time the complainant (MRD No.0149264) was examined by Dr. Gayathri Prasad was complaining of coloured halos since one month.  For this problem the complainant had already undergone treatment at MRC Eye Hospital and was on oral Acetazolamide, Diamox for 3 weeks and also eye drops.  This treatment given to him because of increased intra ocular pressure (hereafter called as IOP).  This is medically called as “GLAUCOMA”.  Complainant also had UVEITIS (inflammation of the eye).  He was further examined by two other Glaucoma experts Dr. Priya Chandil and Dr. Gayathri B.  In spite of medications from MRC Hospital, his IOP was 28mm Hg when he was first examined on 09.09.2016.  Normally the IOP should be within 21 mm Hg and denied the contention of complainant that opposite party No.2 has immediately advised him to undergo surgery is not correct and another contention of the complainant that prior to surgery his vision was clear is not correct, as he was suffering from pain, coloured halos, high IOP and inflammation for which he was undergoing medical treatment at MRC Eye Hospital, Mysore.  The contention of complainant that Dr. Gowri Murthy of Prabha Eye Hospital, Bangalore informing that he could have been cured only by medical treatment and the surgery was not necessary is absolutely false and untenable  and  further contention of complainant that he informed by Dr. Gowri Murthy that even further surgery was done there is no chance of getting visions is also false and baseless and the contention of the complainant that Dr. Gowri Murthy gave opinion that the surgery was conducted by opposite party No.2 was not proper and false is not correct.  In fact the surgery called “TRABECULECTOMY” was done to reduce the IOP, when medical management by drops and tablets was not showing good results and IOP was persistently high.  This is the primary recommended surgical treatment in such cases.  The contention of the complainant that his vision in left eye is due to wrong diagnosis and wrong surgery is based on false assumptions and imaginary facts and it his further contention that he suffering mentally and physically because of deficiency of service is false and baseless.  The opposite parties contended that very fact that the complainant  had glaucoma was known to him earlier as he was treated at MRC Hospital and the further contention of the complainant that he incurred expenditure of Rs.26,000/- apart from surgical charges are not known to opposite party No.2.  The opposite party No.2 is not liable to pay any compensation and interest to complainant.  The contention of the complainant that there was gross negligence on the part of the opposite parties is false.  The OPD records shows that the complainant was examined regularly by the doctors in the opposite party Hospital.  It is further contended that for the 1^st time the complainant was examined on 09.09.2016 at that time the IOP was 28 mm Hg,  he was examined 5 times and the decision to go for surgery was taken after exhausting all possible medical methods to control the IOP.  In spite of that IOP could not be controlled and it stood at 38 mm Hg.  Hence the Trabeculectomy surgery was performed on 24.10.2016 with the consent of the complainant.  The complainant was again seen on 25^th, 26^th, 31^st of October, 4^th, 7^th, 9^th, 12^th, 13^th of November 2016 (almost every 3 days).  The cornea had slightly become hazy because of Cogan Rees syndrome the layers of cornea by itself is defective.  During post-surgery there was considerable reduction of IOP but it was still slightly less than the desired IOP.  It was in range of 24 mm of Hg without glaucoma medicines.  Hence, procedure called bleb needling was performed for reduction of IOP on 17.11.2016.  The complainant seen on 22.11.2016 at that time his IOP was only 8 mm of Hg.  He was normal from then  he was seen on 21.12.2016 after one month at that time his vision was fully improved and he was asked to continue old glasses.  Again seen on 16^th and 17^th January at that time he was better and comfortable, IOP was 6 mm of Hg.  Again the complainant was seen on 11.02.2017 at that time his vision and IOP was normal he was advised to continue old glasses as his vision was good.  Again he was seen on 04.03.2017 at that time he had recurrence of raised IOP and corneal edema.  On 06.03.2017 the complainant was seen again he had persistent rise of IOP, it was again 36 mm of hg.  Therefore it was considered better to seek further advice/treatment under reputed glaucoma experts and referred to Dr. Jyothi Shetty of Narayana Nethralaya.  It is further contended that the complainant has already diagnosed as a case of Glaucuoma   at MRC Hospital and he was already taken treatment before he approached the opposite party Hospital on 09.09.2016.  In opposite party Hospital the earlier diagnosis was confirmed by expert Dr. Gayathri K. Prasad,, Dr. Priya Chandil and Dr. Gayathri .B where it is a case of secondary glaucoma the primary medical treatment is prescribing anti glaucoma eye drops, ointment, oral tablets acetazolamide to reduce the IOP.  In case of IOP and inflammation is not stabilized by the above treatment and the IOP continues to be above 21 mm Hg, the second line of treatment is required which is surgical management to do surgery called TRABECULECTOMY.  Post-surgery medical treatment like drops and tablets are given to reduce the risk of IOP.  The complainant during post-surgery his IOP was in the range of 24 mm Hg.  Therefore Bleb (needling was performing on 17.03.2016) it was not a second surgery as contended in the complaint.  Following the treatment the complainant’s vision improved and IOP was brought down to 08 mm Hg and was asked to continue old glasses.  As per the  medical treaties and well established literature and the reports, rare type of secondary glaucoma is known to have poor prognosis and success rate for Trabeculectomy as per global experts is 50-70%.  The contention of the complainant that his vision was impaired after surgery is false and incorrect.    In fact after surgery with the medical management there was a considerable improvement in his condition and his pain was reduced and IOP was brought down to 08 mm Hg and his IOP and vision was normal.  The complainant was made aware and well informed in advance about the line of treatment and rate of success and further treatment  required the opposite party No.2 is having experience of 26 years with thousands of surgery at his credit there is no possibility of wrong diagnosis and unwanted surgery.  The complaint is filed without substantial grounds.  Hence, prays to dismiss the complaint.

4.  The complainant in support of his case has filed his affidavit by way of examination in chief and the same was taken as P.W.1  and got marked  certain documents On the other hand the opposite parties have also filed their affidavit by way of examination in chief and the same was taken as RW.1, but not got marked any documents on their behalf.

5. We have heard the arguments of complainant and the opposite party counsels.  The complainant’s counsel as well as counsel for opposite parties have produced citations as per memo.

6. The points that would arise for our consideration are as under:-  

1. Whether the complainant proves that due to wrong diagnosis and conducting of wrong surgery to his left eye by opposite party No.2 in the Hospital of opposite party No.1 his vision in the left eye is lost  which act of the opposite party amounts to medical negligence?
2.  What order?

7.       Our findings on the aforesaid points are as follows:

       Point No.1 :- In the negative;

      Point No.2 :- As per final order for the following

:: R E A S O N S ::

8.    Point No.1:- The complainant being an advocate who appeared in person and vehemently argued as per the contention taken in the complaint, affidavit and as per documents produced on his behalf and prays to grant the reliefs as sought for in the complaint.  On the other hand, the counsel for opposite party Nos.1 and 2 has also vehemently argued in detail as per the contention taken in the version of opposite party Nos.1 and 2 and submitted that there is no wrong diagnosis done by opposite parties on the left eye of complainant as alleged in the complaint and allegation made by the complainant in the complaint that due to  wrong surgery  done to his left eye by opposite party No.2,  therefore he lost his vision is  false and further submitted that the allegations made by complainant that there was a gross medical negligence on the part of opposite parties is also not correct and clearly submitted that the opposite party No.1 is a reputed eye Hospital in Mysore and the opposite party No.2 is also well known eye doctor having sufficient experience of 26 years and conducted thousands of eye surgeries.   Therefore the question of wrong diagnosis and wrong surgery as alleged by the complainant does not arise at all.

9.          It is not in dispute that opposite party No.1 is the Eye Hospital, opposite party No.2 is the owner of opposite party No.1 and Eye Specialist working in opposite party No.1 Hospital and it is also not in dispute that on 09.09.2016 the complainant approached opposite party No.1 as he was suffering from ache in his left eye.  Therefore he was examined and diagnosed but the contention of complainant that he was wrongly diagnosed has been totally denied by opposite parties and the opposite parties have contended that at the time of diagnose on 09.09.2016 the IOP in the left eye of complainant was 28 mm Hg.  Therefore the complainant was advised to go for surgery called Trabeculectomy.  In spite of it the IOP could not be controlled and it stood at 38 mm of Hg and the complainant has contended that after 1^st surgery conducted by opposite party No.2 his vision was not clear and he was suffering from ache in his left eye and after 2^nd surgery conducted on 17.11.2016 by opposite party No.2 his vision also was not clear.  But the said contention of complainant has been totally denied by the opposite parties and they contended that after surgery IOP  was in the range of 24 mm of Hg.  To reduce IOP surgery the procedure called Bleb needling was performed on 17.11.2016 which is not second surgery as contended by the complainant.   After procedure Bleb needling was done the complainant was seen on 22.11.2016 at that time his IOP was 8 mm of Hg.  Therefore he was asked to continue old glasses and it is the specific contention of the opposite parties that before the complainant visited their Hospital he was already diagnosed as the case of Glaucoma at MRC Hospital, Mysore and he was taking treatment in the said Hospital which was confirmed by the opposite parties through experts Dr. Gayathri K. Prasad, Dr. Priya Chandil and Dr. Gayathri. B.  At the time when the complainant visited the opposite party Hospital on 09.09.2016 he was suffering from secondary Glaucoma.  So from this contention of the opposite parties it is crystal clear that the complainant is a patient of Glaucoma even before he visited the Hospital of opposite party on 09.09.2016 and he was treated for the Glaucoma at MRC Hospital, Mysore and when the opposite party Hospital seen the complainant on 09.09.2016.  The complainant was suffering from secondary Glaucoma and his IOP was 38 mm of Hg for reduction of 38 mm of Hg IOP they advised the complainant to undergo Trabeculectomy surgery and conducted surgery on 24.10.2016 and thereafter he was seen many a times almost every 3 days and in spite of medication after surgery during post-surgery the IOP of complainant was in the range of 24 mm of Hg which was without giaucoma medicine.  Therefore the opposite party Hospital decided to perform the procedure called Bleb needling and it was performed on 17.11.2016 which is not second surgery as contended by the complainant.  After the procedure called Bleb needling was done the complainant was seen on 22.11.2016 at that time his IOP was 08 mm of Hg and he was normal and his vision had fully improved and he was asked to continue old glasses and again on 11.02.2017 after one month the complainant was seen at that time  his IOP was also normal and his vision was good.  On 06.03.2017 when the complainant was seen he had persistent raise of IOP it was 36 mm of Hg.  Therefore he was advised to take treatment under reputed Glaucoma experts and he was refered to Dr. Jyothi Shetty of Narayana Nethralaya.  From the documentary evidence produced by the complainant it is noticed that it is clearly mentioned in the medical records of opposite party Hospital and it was clearly mentioned therein that the diagnosis conducted by opposite party Hospital    and Trabeculectomy surgery was done to the left eye of the complainant and Bleb needling procedure conducted to the left eye of the complainant and it is also clearly mentioned in the medical records, that after  surgery called Trabeculectomy was done on 24.10.2016 and after procedure called Bleb needling was done on 17.11.2016 the IOP of complainant was considerably reduced to 06 mm of Hg.  Therefore the complainant was advised to continue old glasses and as per the contention taken by the opposite parties when the complainant was seen on 06.03.2017 he had persistent raise of IOP it was 36 mm of Hg.  So it appears  that due to the nature of the body the complainant had persistent raise of IOP it was 36 mm of Hg and from the documentary evidence placed on record by complainant and as per the contention taken by the opposite party it is crystal clear that before the complainant visited the Hospital of opposite party on 09.09.2016 he was suffering from primary Glaucoma and when the complainant visited the opposite party Hospital already he had taken treatment for primary Glaucoma in MRC Hospital, Mysore and when he came to the opposite party Hospital on 09.09.2016  he was suffering from secondary Glaucoma.  Therefore prima-facie it is crystal clear that the complainant was a Glaucoma patient and his IOP was 36 to 38 mm of Hg as per the nature of the body condition and from the documentary evidence i.e., medical records produced by the complainant it appears that the opposite parties have conducted diagnosis on the complainant fairly and was diagnosed of Glaucoma and for reduction of Glaucoma the opposite party advised the complainant to undergo Trabeculectomy surgery and surgery was performed and during post-surgery as the Glaucoma was not reduced to considerable extent the procedure called Bleb needling was done.  So, the IOP of complainant was considerably reduced to 06 mm of Hg and his vision was normal and he was advised to continue old glasses.  Therefore it appears that the opposite parties have performed their duties of diagnosis and done surgery with all care and caution and they managed the condition of the complainant with full care and reduced the IOP of the complainant to 06 mm of Hg and the vision in the left eye of the complainant was normal and he has no pain in the left eye.  Therefore it appears that the opposite parties have discharged their duties without any medical negligence as alleged by the complainant and in view of the IOP of complainant was persistently raised to 36 mm of Hg due to his body condition he was referred to Narayana Nethralaya, Bangalore.  For which it cannot be said that opposite parties are responsible.  When such being the condition of the complainant it appears that there is no medical negligence on the part of the opposite parties. 

10.      It is pertinent to note that the complainant in order to prove medical negligence on the part of the opposite parties he has not examined medical expert.  In the absence of medical expert evidence the complainant not proved medical negligence.

11.      The complainant has relied upon citation reported in 11(2018) CPJ (NC) of NCDRC New Delhi wherein it is observed that patient was suffering from Diabetes, Hypertension for many years, which might be a contributory factor to loss of vision.  Before proceeding to surgery ophthalmologist opinion was necessary to avoid unforeseen ocular complication or other available treatment options.  Opposite parties are liable for extent of incomplete information i.e., consent was not informed.  Opposite party No.2 is liable to extent of failure to take opinion or consultation from ophthalmologist before FESS procedure.  Rs.3,00,000/- compensation awarded by Hon’ble State Commission is just and proper.
12.      In the present case on hand the complainant was very much informed by opposite parties about his existing persistent raise of IOP to 36 mm of Hg and before surgery opposite party taken all care and caution by treating the patient with all necessary medicines thereafter only the opposite party No.2 taken decision and advised the complainant to go for surgery and done surgery to the left eye of complainant.

13.      Therefore the above cited decision has no bearing to the present set of facts of the case on hand.

14.      The complainant also relied upon another citation reported in 1(2018) CPJ 325 (NC) of NCDRC, New Delhi wherein it is observed that medical negligence, eye surgery, severe pain developed-Loss of vision-Implantation of lens not at appropriate place-Deficiency in service State Commission allowed complaint.  Hence, appeal. 

15.      Opposite party take a decision of surgery for implanting artificial lens inside eye post.  But lens moved in vitreous and it was not safe to remove same.  Opposite party had tried to extract lens but it dipped into vitreous.  Therefore opposite party performed anterior vitrectomy and required vitreous and ACIOL was implanted opposite party would have sent patient to higher centre for further management but opposite party failed to refer patient-Negligence proved-Just and proper compensation awarded.

16.      Whereas in the present case on hand the opposite party No.2 has taken all precautionary measures, care and caution and after preliminary treatment only.  The complainant was advised to go for surgery and done surgery.  During post-surgery his vision in the left eye was normal and his IOP was reduced to 6 mm of Hg.  Thereafter his IOP was persistently raised to 36 mm of Hg.  Therefore he was refered to Dr. Jyothi Shetty of Narayana Nethralaya, Bangalore.  Under such circumstances there was no medical negligence on the part of the opposite parties.  Hence, the afore cited citation not applicable to the present set of facts of the case on hand.

17.      On the other hand opposite party counsel has relied upon citation reported in 2002(2) CPC (NC) 463 of NCDRC, New Delhi, wherein it is observed that main ground raised was question of wrong diagnosis.  There is no evidence to prove this basic treatment of medical negligence.  Even main allegation of wrong diagnosis is not proved no expert evidence in the absence of this petition fails and dismissed.

18.     The opposite parties have relied upon another citation reported in 2019(2) CPR (NC) 222 of NCDRC, New Delhi wherein it is held, the burden of proof of negligence of doctor is on the complainant.

19.      And also refered to one more decision reported in 2004(1) CPR 243 of Rajasthan State Commission wherein it is stated that no expert evidence examined by complainant that opposite party doctors were in any way negligent in attending upon mother and child or were unskilled-complaint was without merit.

20.      And also referred to another decision reported in 2004(1) CPR 64 of Bihar State Commission, wherein it is stated that only allegation against appellant was that he performed operation negligently.  No case of negligence or deficiency could be said proved-Impugned order was liable to be set aside.

21.      From the aforesaid respected decisions it is clear that mere allegation of wrong diagnosis by opposite parties and in the absence of medical expert evidence with regard to medical negligence it was held that wrong diagnosis and medical negligence not proved.

22. Admittedly the complainant in the present case not examined medical expert to prove the allegation of wrong medical expert to prove the allegation of wrong diagnosis and medical negligence against the opposite parties.  Therefore the above refered citations by the opposite parties will come to their aid.

23. Therefore we are of the opinion that there is no truth in the allegation of the complainant against the opposite parties stating that due to the negligence of opposite parties his  vision in the left eye had gone cannot be believed and accepted.  Therefore we are of the opinion that the complainant has failed to prove the allegations of wrong diagnosis and the medical negligence on the part of the opposite parties.  Hence, we answer point No.1 in the negative.

24. Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

1. The complaint of the complainant is dismissed.
2.  No order as to cost.
3.  Furnish the copy of order to both the parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Forum on this the 20^th July, 2020)