C.C.No.658/2007
Between:
Yeluri Shyam Sunder Rao, s/o.Seetha Rama Rao, age: 48 years,

R/o.Suggulavari thota, Khammam town and District.
…Complainant

and
1. Dr.P.D.Sharma, Head of the Department and Prof. of

Opthalmology, Mamatha General Hosptial, Khammam.

2. The Managing Director, Mamatha General Hosptial, Giriprasad

Nagar, Khammam.
…Opposite parties
This C.C. coming on before us for final hearing on 20-10-2009 in the presence of Sri.A.Koteswara Rao, Advocate for complainant and of Sri.P.Madhava Rao, Advocate for opposite parties; upon hearing the arguments and upon perusing the material papers on record, and having stood over for consideration, till this day, this Forum passed the following:

O R D ER

(Per Sri.Vijay Kumar, President)

1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The brief facts of the complaint are that the complainant had experienced some difficulty in his left eye and thereby approached Mamatha General Hospital, Khammam, opposite party No.2 through one Md.Anwar and Ch.Kiran Kumar who claimed themselves as doctors of opposite No.2 hospital, opposite party No.1 is the head of department of Opthalmic in opposite party No.2 hospital. The above said persons misguided and cheated the complainant by taking to opposite party No.1, who advised him to undergo cataract surgery. As per the advice of opposite party No.1, the complainant got admitted in the hospital of opposite party No.2 on 20-3-2006. Subsequent to the surgery, the complainant reported the opposite party No.1 that his left eye vision was badly affected after the surgery. The opposite party No.1 advised and assured that the problem will be cleared within 10 to 15 days and prescribed medicines. Even after following advise there is no improvement in vision of left eye. On repeated visits, the complainant was informed that there is small problem in fixing lens during the cataract surgery and informed that one more surgery is required, but the opposite party No.1 intentionally suppressed the fact of failure of surgery to his left eye, which resulted to second surgery. That on 17-5-2006 the opposite party No.1 performed another surgery, which was registered in O.P.No. & I.P.No.176494,5/1219 in the opposite party No.2 hospital. Thus, the complainant spent an amount of Rs.5,000/- towards hospitalization and staff charges. Even after second surgery, there is no improvement in the left eye vision of the complainant. He is unable to see anything in the light and only a flash of light rays only visible to him and he is suffering with astigmatism and uniacular diplopia, due to which the complainant approached the opposite parties number of times, but the complainant was left to his fate without giving proper advise. They rudely behaved and uttered to do whatever you like.

2. Subsequently, the complainant approached the other doctors, who opined that the cataract surgery conducted by opposite party No.1 was failed and there is no hope of getting full vision in future. Due to that impact, vision of right eye was damaged. The doctors further opined that there is no rectification for the present problem as both eyes damaged in the surgery. The opposite party No.1 performed surgery to the complainant in negligent manner without any proper care and caution and lens were fixed negligently resulting into loss of eyesight.

3. The complainant approached Dr.L.V.Prasad Eye Institute, Hyderabad, wherein the doctors opined that right lens show nuclear sclerosis with posterior sub capsular cataract and left lens showed decentered and titled PC IOL with vitreous band in front and left fundus showed RPE changes and opined cataract in right eye and pseudophakia in the left eye was made and opined that the complainant is suffering with astigmatism and uniacular diplopia and suffering disability of vision which cannot be expected after normal cataract surgery.

4. They further opined that the complainant did not come across the above problem in case the opposite party No.1 is discharged his duties with utmost care and caution. Due to bad vision, the complainant lost his job and also earnings and thereby the entire family is on streets and put to starvation and untold mental agony, due to the deficiency of service on the part of opposite party No.1. The complainant became permanent disabled and spent an amount of Rs.20,000/- towards medical and other expenses.

5. The complainant got issued a legal notice on 5-12-2006 claiming compensation of Rs.2,00,000/-, but the opposite parties did not respond to the notice. Hence, this complaint.

6. Apart from the complaint, he filed an affidavit, reiterating the averments of the complaint.

7. On receipt of notice, the opposite parties got filed counter through their counsel by denying all the averments made in the complainant in Toto. It is further submitted that opposite party No.1 is the professor of Ophthalmology since last 7 years. The said Md.Anwar and Ch.Kiran Kumar are not the employees of the opposite party No.2 hospital. The true facts of the case are that the complainant carefully avoided mentioning about the very successful treatment of his keratitis in the left eye carried by the opposite party No.1. The complainant was first seen on 2-3-2006 and gave history of foreign body sensation and pain in the left eye for a few days and on examination, his left eye showed a large area of corneal infection, staining with fluoresce in and in both eye, the complainant was advised to get admitted in the hospital for treatment of keratitis, but he refused, he was prescribed appropriate treatment and was advised to show every day for few days for monitoring, but did not follow the instructions. The problem of keratitis was healed because of correct diagnosis and effective treatment. Again the complainant was admitted on 20-3-2006 for surgery when investigations were found satisfactory, every care has been taken. The complainant was not charged anything for hospitalization and surgery fee and was only required to buy certain consumables like gloves, disposable knives, drapes, syringes, needles, anesthetic agents, hyalase antiseptic solutions, viscous material and the intra ocular lens lengs etc. The surgery made by opposite party No.1 had very good beneficial effect on the vision of the complainant, it took 6 to 8 weeks for surgical wound to heal. His vision showed good recovery to 6/12 which pin hole and on 15-5-2006 there was no problem with implanted intraocular lens, there was no failure of surgery as alleged by the complainant. Two months after, the complainant visited and complained of some irritation in his operated eye, it was found that there was 10 sutures deeply embedded under the conjunctiva at the site of surgical incision with a small butt projecting out. His complaint of sight irritation was due to this suture butt and therefore it needed removal. The suture application is normal procedure during any surgery and also conventional cataract surgery. The suture removal was done with a 26 gauze needle tip under local anesthesia without any complication. But the complainant found missing from the ward after the suture removal. Suture removal after surgery is not another surgery, but part of the normal process of surgery that a patient undergoes. The complainant has ignorantly construed it to be another surgery. Astigmatism is a normal consequence of all conventional cataract surgeries and not a complication. The complainant had 6/9P vision, which extremely good outcome of a cataract surgery. The cataract surgery has been a very good success giving 6/9P corrected vision to the patient. There is no impact of the surgery to the vision of his right eye. His right eye neither damaged nor the affected seriously as alleged by him. He was not submitted report from L.V.Prasad Eye hospital. There the doctors opined that the complainant is suffering with astigmastism and uniocular diplopia and suffering disability of vision which cannot be expected after normal cataract surgery. This report has not established any negligence on the part of anybody, it only mentioned that he underwent cataract surgery in the left eye on 21-3-2006 and YAG capsulotomy in the left eye after 2 months back. In fact YAG capsulotomy was performed on the complainant in this hospital is not equipped with YAG laser. When he was in hospital, all care and caution had been taken and everybody had discharged their duties very well. There is no deficiency of service or negligence by anyone of the opposite parties and prayed to dismiss the complaint.

8. On behalf of the complainant, the complainant himself is examined as P.W.1 and got marked Exs.A.1 to A.6. Ex.A.1 is discharge card, Ex.A.2 is medical prescriptions (16) in number, Ex.A.3 is medical bills(12) in number, Ex.A.4 is office copy of legal notice, Ex.A.5 is postal receipt, Ex.A.6 is acknowledgment (4) in number.

9. On behalf of the opposite parties No.1 and 2, opposite party No.1 himself is examined as R.W.1. No documents are marked on his behalf.

10. Both parties filed written arguments. Heard both sides. Perused the material filed therein and also oral and documentary evidence, upon which the points that arose for consideration are,

1. Whether there is deficiency in service and negligence on the

part of opposite parties in treating the complainant?

2. Whether the complainant is entitled to ask for the damages

caused to the vision of both eyes?

3. To what relief?

Point No.1 and 2:

11. The contention of the complainant that opposite party No.1 had conducted second operation on the left eye of complainant on 17-5-2006, after conducting second surgery, there is no improvement in the vision in the left eye. He is unable to see anything in the light and only in the flash light rays only visible to the complainant. He is unable to identify the persons. He is suffering with Astigmatism and uniacular diplcpia, subsequently, the doctors who treated the complainant with regard to the trouble in the vision of the left eye opined that the failure of operation conducted earlier on the left eye had resulted in vision of left eye of complainant and there is no scope for undergoing another operation for improvement of vision. As such the opposite party failed to take necessary care and caution in conducting operation on the left eye of the complainant and thereby they rendered themselves liable to pay damages to the complainant.

12. On the other hand it is the contention of the opposite parties that the cataract surgery has been a very good success giving 6/9 P corrected vision to the patient and his right eye is neither damaged nor effected seriously as has been alleged . There is no failure of surgery in the left eye as alleged, that there is no hope of getting full vision getting in future is not correct. There is no negligence in surgery or so called fixing of lens in proper manner and there is no loss of sight to the complainant’s any eye due to surgery. The report of L.V.Prasad Eye Institute has not established any negligence on the part of anybody as far as the left eye vision is concerned. In the report itself stated that the complainant underwent cataract surgery in the left eye on 21-3-2006 and YAG capsulotomy in the left eye after 2 months back. But this YAG capsulotomy never performed on the complainant. In the hospital of opposite party, it is not equipped with YAG laser. It appears that the complainant has undergone YAG capsulotomy somewhere else, when the complainant was in the hospital, all care and caution had been taken and everybody had discharged their duties very well and there no iota of deficiency in service or negligence by anyone in regard to the patient.

13. The complainant submits that the opposite parties had intentionally suppressed the fact of second operation and due to which all the complications have developed, resulting into loss of left eye vision. In order to substantiate this contention, the complainant ought to have examined any expert doctor to establish the fact that the complainant lost his left eye vision because of cataract operation conducted by the opposite party No.1 in a negligent manner.

14. For establishing medical negligence or deficiency in service, the courts shall determine the following;

1. No guarantee is given by any doctor or surgeon that the

patient would be cured.

2. The doctor, however, must undertake a fair, reasonable

and competent degree of skill, which may not be the

highest skill.

3. Adoption of one of the modes of treatment, if there are many,

and treating the patient with due care and caution would not

constitute any negligence.



4. Failure to act in accordance with the standard, reasonable,

competent medical means at the time would not constitute a

negligence. However, a medical practitioner must exercise the

reasonable degree of care and skill and knowledge which he

possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.

15. Bearing in mind the aforementioned principles, the individual liability of the doctors and hospital must be judged.

16. In the instant case, the complainant failed to establish that opposite parties No.1 and 2 have not shown due care and caution and reasonable and competent degree of skill has not been shown by the opposite party doctors. The complainant has failed to establish the aforementioned principles to fix individual liability of the doctor.

17. Section 45 of the Evidence Act makes opinion of experts admissible lays down that when the court has to form an opinion upon a point of foreign law. In order to bring the evidence of witness as that of an expert, who acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject and his evidence is really of an advisory character. The duty of an expert witness is to furnish the judge with the necessary scientific criteria, so as to enable the judge to form his independent judgment. In the present case, no such evidence has been taken by the complainant to come to a conclusion that the cataract surgery conducted to the left eye of the complainant had developed to such complications as alleged by the complainant. Mere making allegation against doctors is not sufficient, unless such allegation is proved with cogent reasons. In view of the facts and circumstances of the case, we are of the opinion that absolutely the complainant failed to establish the medical negligence on the part of opposite party doctors or any material placed to fix deficiency in service on the part of opposite party doctors as alleged by the complainant. The complaint is exaggerated one and it is liable to be dismissed. No costs.

18. In the result, the complaint is dismissed.

Dictated to the Steno, transcribed by her, corrected and pronounced by us in the open forum on this 17th day of November, 2009.