SMT. RAVI SUSHA: PRESIDENT

            The complaint was filed alleging medical negligence and deficiency in service on the part of opposite parties ie Dr. O P Umesh ophthalmologist opposite party No.2  and Vasan Eye Care Hospital Fort Road, Kannur OP No.1 in giving treatment to the complainant ie in relation to cataract surgery of his left eye with intra Oculer Lens implant by Phaco emulsification on 22/04/2013  and during post surgery period, result the loss of vision of his left eye, claiming a total compensation of Rs.5,00,000/-.

            The nutshell of the complainant’s case is that the complainant had undergone a cataract surgery of his left eye from Vasan Eye Care Hospital, who is OP No.1.  OP NO.2 is the concerned doctor who had conducted the said operation.  The surgery was done on 22/04/2013.  At the time of leaving the hospital  on the same day he was asked to attend the hospital on the 2^nd and 3^rd day for follow up.  On that 3^rd day he was advised to undergo a corrective surgery which was done on 01/05/2013.  Then he came to know that his vision of the left eye was lost completely, after the surgery.  In fact the said defect was not disclosed to him before conducting the corrective surgery by Dr. Hassan Abbas. Even though he was asked to follow up on three occasions there was no proper treatment nor was any proper advice given by them.  On getting doubt the complainant approached Comtrust hospital at Calicut and from there it was confirmed that his eye sight of left eye is completely lost.  He was also informed that the defect occurred due to the defect occured in the surgery conducted from OP NO.1.  Even though Rs.15,464/- was collected for the 1^st surgery, no amount was charged for the 2^nd surgery.  They have even failed to hand over any case sheet or papers regarding the procedure adopted by them in the hospital, both pre and post surgery.  On contacting the 1st OP, on the 1^st occasion itself they had assured that full eyesight of the left eye shall be restored after the operation.  The eye test from the hospital prior to the surgery revealed only the cataract for the left eye and no other defect was diagnosed or noticed.  The hospital had conducted only the procedural test prior to surgery  since no other defect was found or traced out in his case.  A lawyer notice dated 07/08/2013 was sent to the OPs demanding compensation which was replied by OP NO.2 vide reply dated 03/09/2013.  However the 1^st OP failed to respond.  The contents of the reply given by OP No.2 to the effect that it is only natural phenomenal post operation.  The complainant is therefore claiming a sum of Rs.5 lakhs as compensation as well as costs.

            After receiving notice OPs filed written version stating that the complaint of the complainant was diminishing vision in his left eye.  After examination he was diagnosed to have left eye mature cataract and advised cataract surgery for which he was referred to the 1^st OP hospital.   His left eye visual activity was only counting finger close to face.  The complainant was informed about the diagnosed disease condition of his left eye and explained about the pros and cons of cataract surgery and likely guarded visual prognosis and the complications involved in the procedure such as chance of infection, bleeding, nerve injury, allergic reactions etc.  After fully aware of the guarded visual prognosis and risk factors the complainant voluntarily consented for cataract surgery.  Under all aseptic care and precautions the OP2 conducted left eye cataract surgery with IOL implantation by Phaco Emulsification under topical anesthesia.  The surgery was uneventful and after examination he was found fit for discharge on the same day.  On review, his visual activity was  1 meters counting finger (IMCF).  Due to sub optimal visual recovery he was examined in detail by dilation of the left eye.   It showed clear cornea and IOL, but retina showed macular hole with superior retinal detachment.  In the light of the above findings the complainant was referred to retinal surgeon Dr. Hassan abbas.  The Retinal surgeon confirmed the diagnosis of left eye macular hole with retinal detachment.  The complainant had developed macular hole and retinal detachment due to factors unconnected to cataract surgery and subsequent surgery was necessitated because of retinal detachment due to inherent defect in the eye.  On 04/05/2013 itself his retinal surgery was successfully done at the 1^st OP hospital by the retinal surgeon.  Dr.  Hassna Abbas.  Post operatively retina was well attached.   His visual function over the next two weeks improved to CF 3 M (counting finger 3 meters).  He had made regular follow up to 01/06/2013 and lost further follow up.  There was no negligence on the part of  OPs.

The complainant in proof of his case filed his affidavit evidence and got the documents marked as Ext.A1 to A13, while on the side of OPs two witnesses including the OP No.2 has tendered evidence and got the document marked as Ext.B1 the case records of complainant from OP hospital.  The 1^st witness from OP’s side is Dr. Dolly Francis one of the members in the medical board constituted at District hospital, Kannur for examining the complainant to assess the visual disability and issued report (Ext.X1).  Dw2 is the 2^nd OP.  After that the learned counsel of both parties made oral argument and filed their respective argument ntoes also.  The learned counsel of OP also submitted a number of citations and judgment of apex court.

            In this complaint, the complainant has alleged that on the 1^st occasion itself OPs had assured that full eye sight of the left eye shall be restored after the operation and the major fault of the OP was to make him shuttle around for about 2 months without disclosing that his eye sight is lost after the operation.  Therefore he could not resort to take any advice from other doctors or hospitals.  We must reject this plea of the complainant because in the consent letter given by the complainant and his wife before the 1^st surgery, explained about the pros and cons of cataract surgery and complications involved in the procedure.  After fully aware of the guarded visual prognosis and risk factors the complainant and his wife voluntarily consented for cataract surgery.  So it is clearly evident that complainant availed treatment of OP No.2 was the voluntary decision of the complainant.  Here it can be seen that the complainant has made no grievance either about the qualification, skill or expertise of OP No.2 in conducting such a procedure.

            In the instant case, the 1^st instance of medical negligence and deficiency in service raised by the complainant is that, without disclosing defect of 1^st surgery to him, conducting the corrective surgery by Dr. Hassan Abbas on 04/05/2013 Next allegation is he was asked to follow up on three occasions, there was no proper treatment nor was any proper advice given by OPs.  On getting doubts he approached contrast hospital at Calicut and from there it was confirmed that this eye sight of left eye in completely lost and it was occurred due to defect in the surgery conducted from OP NO.1 hospital.  Another allegation in OPs have even failed to hand over any case sheet or papers regarding the procedure adopted by them in the hospital both pre and post surgery.

            In this case the undisputed fact is that after the surgical procedure for the removal of cataract and intra ocular lens implant in the left eye of the complainant by OP NO.2.  Complainant alleged that on 3^rd day, he was advised to undergo a corrective surgery.  Then he came to know that his vision of the left eye was lost completely after the surgery.  Therefore, the question which will decide is whether the loss of vision of left eye was a result of any act of commission or omission as alleged by the complainant on the part of OP NO.2 which in turn can amount to negligence or deficiency in service?

            The question as to when a medical professional can be held liable of medical negligence has been considered by Hon’ble Supreme Court & National commission in several decisions.  The learned counsel of OP submitted decisions In order to prove medical negligence that it is necessary to provide expert evidence.  Further the judgment  Dr. SK Jhunjhuwala 2019 (2) SCC 282 the Hon’ble Supreme Court held that  in our opinion, there has to be a direct nexus with these two factors to sue a doctor for his negligence.  Suffering of ailment by the patient after surgery is one thing.  It may be due to many reasons known in medical jurisprudence.  Whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of Doctor another thing.  To prove the case of negligence of a doctor, the medical evidence of experts in field to prove the latter is required.  Simply proving the former is not sufficient.  The expert witness plays an essential role in determining medical negligence and the courts by and large reply on expert witness testimony to establish the standard of care germane to a medical negligence case.”  Girishchandra V Bhatt VS Sterling Hospital 2018(2) CPR(NC) 296.  Medical negligence cannot be inferred in face of contrary expert opinion.  Obaid Hassan Khan VS Jamila Rashid, 2013 4 CPJ(NC) 551;2014 1 CPR(NC) 125.  In a case of medical negligence it is for complainant to prove negligence by examining expert witness.  Principal, Appejay School VS M R T P Commission 2001 0 AIR (SC) 3858; 2002 1 CPJ(SC)13;2001 3 CPJ(SC)13; CPR (SC) 172.  Where expert medical opinion contradicts allegation of medical negligence, no compensation can be awarded to the complainant.  T George VS Apollo Hospitals Enterprises, 2010 3 CPR 30.  A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved.  It is the obligation of the complainant to provide the facia probanda as well as the facta probantia.   C P Sreekumar V Ramannjam 2009 0 Supreme (UK) 218; 2009 2 UAD 232 SC; 2010 1 UC 303SC.  The National Commission held that in the absence of expert evidence no negligence or deficiency in service could be found against doctors.   Kiran Bala Rout v Christian Medical College and Hospital, 2003 (1) CPR(NC) 238.

            According to OP NO.2, the surgery was done under all aseptic care and precautions OP2 conducted left eye cataract surgery with IOL implantation by Phaco Emulsification under topical anesthesia.  The surgery was uneventful and after examination he was found fit for discharge on the same day.  On review his visual activity was  1 meters counting finger (IMCF).  Due to sub optimal visual recovery he was examined in detail by dilation of the left eye.   It showed clear cornea and IOL, but retina showed macular hole with superior retinal detachment.  In the light of the above findings the complainant was referred to retinal surgeon Dr. Hassan abbas.  The Retinal surgeon confirmed the diagnosis of left eye macular hole with retinal detachment.  The complainant had developed macular hole and retinal detachment due to factors unconnected to cataract surgery and subsequent surgery was necessitated because of retinal detachment due to inherent defect in the eye. On 04/05/2013 itself his retinal surgery was successfully done at the 1^st OP hospital by the retinal surgeon.  Dr.  Hassna Abbas.  Post operatively retina was well attached.   His visual function over the next two weeks improved to CF 3 M (counting finger 3 meters).  He had made regular follow up to 01/06/2013 and lost further follow up. 

            OPs stated that the complainant had developed macular hole and retinal detachment due to factors unconnected to cataract surgery and subsequent surgery was necessitated because of retinal detachment due to inherent defect in the eye. The said surgery was required to be done at the earliest time since the complainant was affected with sight threatening retinal detachment.  As on 04/05/2013 itself his retinal surgery was successfully done at OP1 hospital by the retinal surgeon Dr. Hassan Abbas.  Post operatively retina was well attached and his visual function over the next two weeks improved to CF 3M.

            Here it is to be noted that two surgeries were conducted in the left eye of the complainant by OP NO.2 on 22/04/2013 and subsequently by the retinal surgeon              Dr. Hassan Abbas on 04/05/2013.  Though complainant alleged defect in the surgery done at OP1 hospital, neither Dr. Hassan Abbas (Retinal Surgeon) was arrayed as one of the parties to the complaint nor any allegation of medical negligence or deficiency in service has been made in the complaint against Dr. Hassan Abbas.  However it can be revealed that it as a fact that despite the visual function over the left eye improved to CF3M  after  second surgery noted in (Ext.B1), the left eye could not be saved.

            In this contest we have to analysis the evidence given by Dw1 Dr. Dolly Francis a member of the medical board. In the chief examination itself, she stated that the complainant did not bring any of his medical records. Therefore, the board was not aware of the treatment given to the complainant.  Her further testimony is as follows.  കണ്ണിലെ റെറ്റിന പരിശോധിക്കുന്നത് ലെൻസിലൂടെ അകത്തേക്ക് നോക്കിയിട്ടാണ്.  തിമിരം ബാധിച്ചതിലൂടെ അകത്തേക്ക് നോക്കിയാൽ ഗ്രേഡ് 3 4 ആണെങ്കിൽ റെറ്റിന കാണാൻ സാധിക്കുകയില്ല.  ഗ്രേഡ് 1,2 ആണെങ്കിൽ അവ്യക്തമായി കാണാൻ പറ്റും.  റെറ്റിനയുടെ വിശദമായ പരിശോധന തിമിരം മാറ്റിയാൽ മാത്രമേ സാധിക്കുകയുള്ളൂ.  തിമിര ശസ്ത്രക്രീയ കൊണ്ട് റെറ്റിനക്ക് ഹോളും detachment ഉം വരാനുള്ള സാധ്യത 0.2  to 3 ശതമാനം മാത്രമേ ഉള്ളൂ.  റെറ്റിനക്ക് ഹോളും detachment ഉം അടുത്ത കാലത്താണോ, നേരത്തെ ഉള്ളതാണോ എന്ന് പരിശോധനയിലൂടെ മനസ്സിലാക്കാം. This is a very relevant and material fact.  Since the complainant has a case that it was due to negligent treatment of the OP he should prove that detachment and hole was after treatment.  In her cross examinations she deposed as follows.  Cataract surgery കൊണ്ടാണ് വിഷ്വൽ ലോസ് വന്നത് എന്ന് എനിക്ക് പറയാൻ പറ്റില്ല.  Cataract െൻറ ഗ്രാവിറ്റി Ext.B1 പ്രകാരം 3 or 4 ആയിരിക്കണം.  When she was     re-examined she submits as follows:  Ext.B1 നോക്കിയാൽ Cataract െൻറ ഗ്രേഡ് 3,4 ആവാം എന്ന് പറഞ്ഞത് അതിൽ രേഖപ്പെടുത്തിയ ഓപ്പറേഷന് മുന്പുള്ള കണ്ണിെൻറ വിഷൻ നോക്കിയിട്ടാണ്.

    Further though complainant alleged negligence on the part of OPs ie his eye sight of his left eye was lost due to defective surgery, it is to be noted that the 2^nd surgery was done after about 10 days from the 1^st surgery.  But there is no allegation of complaint either felt discomfort, pain headache, or vomiting etc. and approached OP No.2 or any other doctors or hospital for getting treatment.  Further, though complainant alleged  that as there was no response from the OPs after  the 2^nd surgery he approached Comtrast Hospital, Kozhikode and from there he realized that his left eye sight, was lost forever and it was due to defective surgery from the OP No.1 hospital. Since complainant has not produced any piece of evidence either through medical records or through examining the treating doctor from Comtrast Hospital, Kozhikode, we cannot believe the said allegation of the complainant.  Moreover though the learned counsel of complainant submitted that Ext.A13, the medical report issued by OP NO.2 clearly shows that the complainant had only complaint of cataract left eye, the 2^nd surgery done was only to correct the  defect in the 1^st surgery done by OP NO.2 doctor.  The said argument was strongly opposed by the learned counsel appeared for OPs.  On perusal of Ext.A13, it can be revealed that (Ext.A13).  “Complainant consulted our hospital with diminished vision left eye. Examination showed cataract left eye for which he underwent uneventful left eye phaco under topical anesthesia on 22/04/2013.  Post operatively he developed left Sup. RD for which he was underwent lefte Vit+MP+ILM peeling+FGE+EL+SOI under local anesthesia on 04/05/2013.  Post operatively retina attached.  On topical medication.  Seeks 2^nd opinion hence referred”.        The finding in Ext.A13 in tallied with the condition of left eye of the complainant as stated in the Ext.B1 case records. 

            Moreover issuance of Ext.A13 shows that OP No.2 had given the paper regarding the procedure adopted by OP No.2 in the OP No.1 hospital and the complaint of the left eye of the patient.  From analyzing Ext.A13 we cannot come to a conclusion that complainant had a complaint of cataract alone when then he consulted OP No.2.  Further Dw1 deposed that the grade of cataract of complainant might have grade 3,4  as per Ext.B1 case record and in case of Grade 3,4 the retina could not be visualized, when cataract was present in the eye, the contention of OPs about the inherent defect of the complainant left eye is established.  Further in Ext.X1 cause of vision loss and duration of vision loss was not assessed.  The evidence given by Pw1 during cross-examination that he had no complaint at defect in the eye sight, at the 1^st time of consultation with OP2 cannot be  believed from referring medical records.

            Thus on a consideration of the submissions put forth on behalf of the parties and  in view the law as laid down by the Apex court on the subject, we are view that the complainant has not been able to establish any medical negligence or deficiency in service on the part of OPs.

            It is a fact that the vision of complainant’s left eye was lost and he has visual disability of 30%, we are unable to find against OPs because it has not been established on record that the eye sight of the complainant’s left eye was lost on account of either any negligence committed by OP NO.2 ophthalmologist or any deficiency in service on the part of OP NO.1 hospital.

            On considering the entire facts and circumstances of this case, complainant failed to establish the allegation of medical negligence against opposite parties.

            In the result complaint fails and hence the same is dismissed

Exts.

A1-         Medical report of OP No.1 dated 06/05/2013

A2- Scan report

A3-Registration card dated 08/04/2013

A4- Identify card

A5- Medical Certificated dated 23/04/2013

A6-Invoice copy dated 04/05/2013

A7-Copy of bill dated 13/04/2012

A8- Copy of invoice dated 04/05/2012

A9- Lawyer notice dated 05/08/2013

A10- Postal acknowledgement

A11- Reply notice of OP2

A12-Reply notice of OP1

A13-Medical report of OP1 dated 13/06/2013

B1-The case record of complainant from OP hosptal

X1- Disability certificate

Pw1-Complainant

Dw1-Dr.Dolly Francis-Witness of OP

Dw2- OP2

      Sd/                                                                  Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar