At, Bihar State Consumer Disputes Redressal Commission Patna
By, THE HONOURABLE MR. JUSTICE D.P.S. CHOUDHARY
By, PRESIDENT & THE HONOURABLE MR. JUSTICE DR. ASMA AHMAD
For the Appearing Parties: -------
D.P.S. CHOUDHARY, President
1. O.P. is the appellant who has preferred the appeal against the order dated 16.4.2003 passed by District Forum, Bhojpur in Complaint Case No. 233/2002 whereby and whereunder the District Forum has allowed the complaint and awarded Rs. 40,000/- as compensation, Rs. 15,000/- as expenses incurred on medicines and Rs. 1,000/- as litigation cost against the appellant-O.P.
2. The brief fact of the case is that complainant had eye problem in his right eye and he came to the hospital-O.P. for treatment. On 16.2.2002 his right eye was operated. It is alleged by the complainant that during the operation his right eye was damaged due to cutting by knife and he felt pain and bleeding started. His eyes was bandaged. On 17.2.2002 and 18.2.2002 the O.P. did not give him the correct picture of his eye but prescribed some medicine but he had no relief and he was having acute pain in the right eye. On complaint the O.P. snatched receipt and cash-memo. Thereafter on 19.2.2002 the complainant went to IGIMS at Patna for treatment. It is alleged that complainant has paid Rs. 3,000/- as cost of operation and Rs. 1,000/- for medicine to the O.P. The contention of the complainant is that while performing the operation on his right eye the O.P. negligently got his eye damaged which amounts to deficiency in his medical service and suppressed this fact and on complaint he snatched the cash-memo, etc.. Thereafter he filed the complaint with the above claim as mentioned above.3. On notice the O.P. appeared and filed show cause. O.P. admitted that complainant’s right eye was operated in the hospital but denied accepting the amount for operation and medicine as claimed by the complainant. It was also refuted that at the time of operation negligently by knife the right eye of the complainant was damaged. If actually the knife is used in the eye it will damage the entire eye-ball and there will be excessive haemorrhage. The report of the IGIMS where the complainant got him treated subsequently does not found any negligence on the part of the O.P. in performing the operation. The complainant was suffering from diabetes and in that case every operation has a risk factor which was told to the complainant before the operation and all steps were taken by the O.P. to control the diabetes level before the operation. The operation was conducted with all due care and precaution but in many cases the result is not towards O.K. and due to many reasons including rise of diabetes level the eye sight is not restored even after performing the operation efficiently. Therefore, there was no negligence or deficiency in duty on the part of the O.P. There is no expert opinion to hold the O.P. negligent and deficient in duty.4. After hearing both the parties and considering the papers on record the District Forum found the appellant negligent in his duty and passed the order as detailed above.5. The learned appellant’s lawyer submitted before us that the District Forum has presumed that since the eye sight was not restored to the complainant after the operation, therefore, it is presumed that it was negligence on the part of the operating surgeon. The District Forum also presumed that after the operation of cataract and lense grafting the eye sight must be restored in one and all cases. This finding arrived at by the District Forum is based on hypothesis and without any evidence and expert. The District Forum has not considered the facts enumerated by the O.P. in which it has been made clear that complainant was suffering from diabetes and in many cases due to rise of sugar level and other associated condition even after implant of lense in the cataract operation the eye sight is not restored. The complainant’s case was under that category. The patient was admitted in the hospital on 30.1.2002 and he was given long treatment for control of the diabetes and only on 16.2.2002 his right eye was operated and I.O.L. was installed and he was treated till 19.2.2002 in the said hospital but when it was found that it required further expert treatment then he was referred to IGIMS. This shows that all cares were taken by the appellant before and after the operation of the right eye of the complainant and as per medical ethics and rules when the O.P. found that patient requires further treatment by an expert agency then he was referred to IGIMS. Therefore, at no stage the O.P. was negligent in his duty nor the operation was performed negligently. The District Forum has wrongly construed the report of the IGIMS. In the report it is mentioned that it has found positive, no fungus seen on wet smear and thereafter some medicine was prescribed. It is not mentioned in the report that due to negligent or deficient act of the operating surgeon at Ara there was any damage to the eye of the complainant. No bleeding was detected by IGIMS nor any such fact is mentioned in the report. The report has been wrongly read and construed by the District Forum and finding and observation has been added in the report out of its own. It was further submitted that cost submitted by the complainant including the medical fee of the O.P. and cost of the medicine are imaginary.6. The complainant-respondent has filed rejoinder and it was submitted on his behalf that O.P. has taken huge amount from him as operation charge, medicine charge, etc. but only one receipt of Rs. 2,500/- has been given to him showing price of I.O.L. After operation on 16.2.2002 the surgeon found that he has committed some mistake in the operation but suppressed the fact and on 17/18.2.2002 he went on trying different medicine and lastly the patient himself left the hospital and went to IGIMS. He was not referred by the O.P. The O.P. is not a charitable hospital but in the grab of this name every fee charged for all the patient and receipt is not given for every charges. His operation was performed by the O.P. with the help of a knife which the patient has seen from the naked eye and the appellant was not performed microscopic method as alleged. The internal file of the O.P. produced before the District Forum are manufactured documents. The learned lawyer of the respondent placed reliance on the report of the IGIMS, Patna and submitted that from this report itself it is clear that at the time of operation of his right eye he was having acute pain and bleeding which leads to the conclusion that operation was performed negligently. The blood sugar report dated 18.2.2002 shows that it was at normal level, therefore, his eye sight has not affacted due to the rise in the blood sugar. From the report of Gram’s staining, Patna dated 21.2.2002 it is clear that his eye was bacterial infected badly. It leads to the conclusion that after operation his eye infected due to unhygenic condition in the hospital or due to infected bandage put after the operation by the O.P. This internal infection of his eye was responsible for the loss of his eye sight and for which the O.P. are responsible being negligent in duty. The complainant’s eye became completely white and there was no light though before the operation he had some light in this eye also. The contention of the respondent’s lawyer is that impugned order is in accordance with the fact and law and the appeal should be dismissed.7. We have heard the learned Counsels for the parties and gone through the records. The case of the complainant that right eye of the complainant-respondent has been operated by the appellant on 16.2.2002 in the Harkhen Kumar Jain Hospital at Ara. The complainant had been indoor patient of this hospital since 30.1.2002 and was treated there mainly for blood sugar, B.P., etc. as appears from the photo-copy of the papers of this hospital. On 16.2.2002 he was operated upon and before the operation his B.P. was recorded as well as blood sugar fasting and after meal is recorded. His operation was done under IOL and lense was grafted. The detail of the operation is mentioned in the chart of the indoor patient dated 16.2.2002. The photo-copy is on record. He was in the treatment of the said hospital under the appellant-doctor till 19.2.2002 and medicine was administered in his eye after the operation and since he was complaining problems in the eye he was referred to IGIMS, Patna. The outdoor ticket of IGIMS have been filed which are on record. We have carefully perused these records. From these papers nowhere it is mentioned that appellant who performed the operation on 16.2.2002 has damaged the eye of the respondent nor it is mentioned that due to this operation the eye sight of the respondent was damaged. It also clearly mentions that from the report of the laboratory test at IGIMS no fungus seen on the wet smear preparation. It means that no infection was found in his eye after laboratory investigation, therefore, we have no evidence before us to come to the conclusion that the complainant’s operation of his right eye by the appellant was done negligently and carelessly or the appellant-doctor was not qualified to perform this operation. It is not the case of the complainant that appellant is not a qualified doctor. It is admitted fact that complainant was a patient of diabetic and all efforts were done at the appellant’s hospital to control his sugar level and blood pressure before performing this operation.8. In order to prove his case the complainant has to prove negligence in the surgery on the part of the appellant. This proof must be by an expert evidence or opinion but on record the documents filed on behalf of the complainant do not prove this allegation against the appellant. On the other hand, it appears that the appellant had taken all cares which a prudent doctor should adopt while performing the operation of an eye to a patient suffering from diabetes and blood pressure.9. It has been held in different judgments by the National Commission and by the Hon’ble Supreme Court that a charge of professional negligence against the doctor stood on a different footing to a charge of negligence against the driver of a motor car. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor. The complainant-respondent has miserably failed to adduce expert evidence in support of his allegation of negligence against the appellant. It is known fact that the best skill in the worldly things some time went wrong in medical treatment or surgery operation. A doctor was not to be held negligent simply because something went wrong. It is admitted fact that complainant’s eye sight was not restored after the operation conducted by the appellant but on this ground alone a doctor was not to be held negligent because even after adopting all precautions and care the result of the operation may not be satisfactory because it depends on various other factors. The contention of the appellant that patient was suffering from diabetes and blood pressure and in many such cases the eye sight is not restored after the operation howsoever carefully it is done. In the instant case there is nothing on record to show that something went wrong due to an act of the appellant-doctor. There is no evidence to come to the conclusion that the appellant fell below the standard of a reasonably competent practitioner in their field, so much so that there conduct might be deserving of censure. The appellant cannot be liable for negligence because someone else of better skill or knowledge would have prescribed a different method of operation in different way. The evidence has come that appellant has performed the operation and acted in accordance with the practice regularly accepted and adopted by him in this hospital and several patients are regularly treated for their eye problems. The Hon’ble Supreme Court in the case of Dr. Laxman Balkrishna v. Dr. Triambak, AIR 1969 SC page 128, has held the above view and this view has been further confirmed in the case of Indian Medical Association v. Santhana. The Apex Court and the National Commission has held that skill of medical practitioner differs from doctor to doctor and it is an incumbent upon the complainant to prove that O.P.-appellant was negligent in the line of treatment which resulted into the loss of eye sight of the complainant. A Judge can find a doctor guilty only when it is proved that he has fallen short of standard of reasonable medical care. The fact and circumstances of the case before us, show that appellant has attended the patient with due care, skill and diligence and if the patient’s eye did not work satisfactorily, on this account alone it would be difficult to hold the doctor to be guilty of negligence and deficient in his duty. It is settled law that it is for t
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he complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubts. Mere allegation of negligence will be of no help to the complainant.10. From the perusal of the impugned order of the District Forum it is crystal clear that District Forum has based his finding against the appellant on the fact that after the operation and transplantation of lense the eye sight was not restored to the complainant and at IGIMS, Patna it was found that in spite of operation and grafting of the lense he has very little eye sight and that proves that his operation was performed negligently by the appellant this is not a correct finding based on assumption and hypothesis. The District Forum has not referred to in his order what was the expert evidence to come to the finding that operation conducted by the appellant was negligent which resulted into the loss of the eye sight of the complainant. Simply because his eye sight was not restored and it deteriorated after the operation and transplantation of the lense is not a valid reason to come to this finding that appellant was negligent. Therefore, the impugned order is not in accordance with the settled law and it is fit to be set aside.11. In the result, the appeal is allowed and the impugned order is set aside. However, there shall be no order as to cost.Appeal allowed.