Consumer Complaint No: 278/2007

Date of presentation: 06.08.2007

Date of decision: 06.01.2010

Sh.Raj Kumar S/o Sh. Lachhmi Dass,

Village Lattela, B.P.O. Deothi,

Tehsil Rampur Busher, District Shimla, (HP).

… Complainant.
Versus

1. The Director

Health Service Department,

S.D.A. complex, Kasumpti,

Shimla-171009 ( HP).

2. Dr. R.N. Shashni

Ophthalmic Surgeon,

Din Dayal Uppadhayaya Hospital,

Shimla-171001 (HP).

…Opposite Parties

For the complainant: Mr. Shashi Shirshoo, Advocate.

For the Opposite Party No. 1: Mr. Anoop Sharma, A.D.A.

For the Opposite Party No. 2: Mr. Virender Chauhan, Advocate.

O R D E R:

Per, Dr. Karuna Machhan, Member: - This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he visited Din Dayal Uppaadhayaya Hospital Shimla on 20.07.2005 for the treatment of eyes and was checked by OP.No.2, who advised the complainant to under go for operation, hence, he was got admitted in the aforesaid hospital accordingly on the same day. The complainant purchased the prescribed medicines required for the operation worth Rs. 7690/- which includes the cost of the lens worth Rs. 5148/-. The complainant further avers that the operation was done on 21.07.2005 but at the time of his discharge on 22.07.2005, he complained some pain in the operated eye because nothing was visible, from the operated eye. The OP.2 advised to take some medicines as prescribed and the vision will returned shortly. On the advice of OP.2 the complainant visited the hospital on 26.07.2005, where he again complained some pain and the vision as nothing was visible. Similarly the complainant visited the hospital on 03.08.2005, with same problem. It is also averred that, after examining by the OP No.2, it was found that the lens fitted in the eye of the complainant has slipped from its original place for which another operation is required and the complainant was advised to go to PGI Chandigarh. On the advice of the OP.2 the complainant went to Chandigarh where he was examined by Dr. M.R. Dogra and operation was done on 18.08.2005 whereby earlier lens was removed and a new lens was fitted. Thereafter, the complainant visited PGI on 06.09.2005, 10.10.2005 and 17.03.2005. On the advice of the doctor. It is further averred that the OP.2 hasn’t taken due care and caution while performing operation and OP No.2 is responsible for the loss of vision of the eye of the complainant. It is also averred that the complainant is balder on regular basis and perform his duty in hilly area but after losing vision of one eye the complainant is under great mental agony and the vision of the other eye is also becoming low due to strain. Hence, it is averred that, there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OPs has contested the present complaint by filling separately replies and raised preliminary objections of limitation vis-à-vis maintainability of the present complaint, jurisdiction of this Forum. Status of the complainant as a consumer and lack of expert opinion. On merits, it has been specifically denied that the complainant lost the vision of the eye after operation. It is further averred by the OP No.2 that since Vitreo-Retinal Surgical facility is not available in Himachal Perdesh so the case was timely referred to PGI Chandigarh by the OP.2. It is further averred that due to rise in pressure post operation for which the medicines were prescribed by the OP.2 and advised to visit the hospital again and on 03.08.2005 it was noticed that the lens was displaced from its original position which could have cured with Vitreo-Retinal Surgical facilities, hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The complainant, is, aggrieved by the act of the OPs, in not taking due care and caution while conducting, the, eye implant operation, upon him, on, 21.07.2005. On the other hand, the OPs, have repudiated the claim of the complainant, on the strength that their, is, no material on record so to, prove gross medical negligence on their, part, in the performance of the aforesaid operation, rather, they have contended, that, the concerned Dr. adhered to the standards of due care and caution, while, performing the operation.

6. In order, to, prove the fact of gross medical negligence, it was incumbent upon the complainant, to, have placed on record cogent, convincing and apposite evidence, especially, expert evidence, so as, enable us to, infer that, their, was gross medical negligence on the part of the concerned doctor while performing the eye implant operation upon him. In, the, said regard the complainant has filed, his, own affidavit in support of his averment, of, the concerned doctor being grossly negligent in the performance of the eye operation. However, no expert evidence, has been brought on record, to, prove, that, the vision of the eye of the complainant was lost owing, to, the gross negligence of the OP No.2, while conducting the said operation. On the contrary, the OPs have filed a detailed reply. The OP No.2, who had conducted the operation, details, in his reply, that the, procedure as adopted by him concurred with, as, also conformed to well established norms as stipulated in Annexures R-2 to R-5. The OP.2 has filed his own affidavit as well as, filed affidavit of Dr. Sunder Singh Negi, who is posted as M.S. (Ophthalmic), Ophthalmic Department DDU Hospital, Shimla, corroborating the reply filed by the OP No.2. The OP No.1 has, also, filed the affidavit of Dr. Jitender Kumar, Sr. Medical Superintendent DDU Zonal Hospital Shimla. The OP No.2 has also placed on record, the copy of the report of Expert Committee bearing Annexure OP-2/A, detailing, therein, its findings qua the fact of purported impairment of the eye vision, of, the complainant. This report also bears the signatures, of, Dr. Sunder Singh Negi who was the member of the said expert committee. Dr. Sunder Singh Negi has categorically detailed in his affidavit under paragraph 3, that, Sh. Raj Kumar was having visual acquity 6/12 with glasses on 17.03.2006, while, the same was recorded 6/30 (visual acquity) on post operative day i.e. 19.08.2005. It is further detailed in this report that the patient was properly admitted, operated and followed by the concerned doctor under the existing facilities at DDFU Zonal Hospital, Shimla. Therefore, the committee has clinched, the, finding, that, Sh. Raj Kumar falls in normal category of vision as, on, 17.03.2006 and, as such, the contention of the Ops have been, refuted. Hence, for lack of the findings of the expert committee having not come to be impeached, they, attain finality.

7. Obviously, the, attribution of the complainant of the doctor being grossly negligent in performing the operation, hence, his vision having been impaired, is, emphatically belied, by, the report of the expert committee. Also, the expert committee having recorded, a, binding finding which, is, not open for interference by us, with, we being not experts, that, with the available facilities with the relevant hospital where the operation was conducted, their, was, no, fault or negligence on the part of the doctor who conducted the operation, rather, the committee having categorically opined, that, the patient was properly operated, also, in, our considered view negates, the, attribution by the complainant of the doctor being grossly negligent in the performance of the operation, resulting, in, the slipping of the lens into his eyes leading, to, the purported impairment of his vision. Moreover, the findings, of, the expert committee, that, with the prevailing facilities, then, available with the concerned hospital, the, operation was conducted properly and, it, not having been proved by the complainant, that, the facility of vitero-retinal surgery were available with the hospital, at, the time of performance of the operation, hence, when, we, have while relying upon the report of the expert committee, and in, its, findings dispelling, the, attribution of purported negligence on the part of the doctor who performed the eye operation, hence, having resulted in the slipping of the lens, into, his eyes causing visual impairment, as, a, natural corollary, then, the mere fact of necessity, of, the patient/complainant required to undergo vitreo-retinal surgical surgery, does not ipso facto, as, contended by the learned counsel for the complainant, germinate, an, inference of the doctor who performed the operation, being, grossly negligent at the time of inception of the operation, or during its conduct or even subsequently, by, the mere fact of his making a reference, to, the PGI for, his, being required to undergo vitreo-retinal surgical, a facility, not, proved to be available with the concerned hospital and for the sake of reiteration, whose necessity, cannot, be, attributed, to, the fact of the doctor who conducted the operation being grossly negligent in its performance or even subsequently.

8. The above view, as communicated by us aforesaid, inasmuch, as, ours having articulated, that, in the absence of the expert committee having not concluded, that, the doctor who performed the operation was grossly negligent, we, being not experts, cannot take to, rely on, the bald allegations of the complainant, even though they may be, supported, by, an affidavit, yet, not supported by the findings of the expert committee, which are rather adversarial, to, the contention of the complainant, hence, are, legally interdicted to record, a, conclusive finding, that, the, doctor who performed the operation was grossly negligent during, its, performance or even later, though, sought, to be anvilled, on the, mere fact of his making a reference to PGI, for, his, undergoing vitreo-retinal surgical, a facility which has not been proved, to, be available with the concerned hospital, at, the relevant time, nor at, the stage of the completion of the operation, as also, with the attribution, of, the lens, as, fitted in the eyes of the complainant, to have slipped owing to some gross negligence, for, reasons recorded hereinabove, has been held by us, to, be not substantiated nor, also, the facility subsequent, to, the conclusion of the operation, at, the concerned hospital has been also not proved to be then available, their, hence, when we can, also, lean towards the view, that, the slipping of the lens in the eyes of the complainant, and the consequent purported impairment of his vision may have, been, occasioned, by, his breaching the cannons of due care and caution, which the patient himself ought to have observed, inasmuch, as, adhering to the precautions, as, advised by the doctor and which advisory precautions, neither have been proved by the complainant, to have not been handed over to him, by the concerned doctor, hence, precluding him to contend, before, us, that, assumingly, if, there was breach of cannons of due care and caution on his behalf subsequent to completion of surgery by the concerned doctor, it, was entirely on account of negligence of the doctor not having briefed him about precautionary advises to be adhered, to by him, as such, cumulatively we can forth rightly conclude, that, with absence of proof of gross negligence, by, the concerned doctor at the relevant time, within, the parameters, of, the law laid down in 1(2009) CPJ 32 (SC) Supreme Court of India, in case Martin F. D’Souza versus Mohd. Ishfaq, enshrining, that the courts of law, in, the absence of the findings of the expert committee holding the doctor who conducted the operation, to be grossly negligent in the performance of the operation, ought not, to, independently conclude so.

9. Therefore, with the legal interdiction contained in the ruling of the Hon’ble Apex Court, against ours independently of the findings of the expert committee concluding about the gross negligence of the doctor, we hence, in the wake of the report of the expert committee, rather, negating such an attribution, are, obviously bound to concur, with, as well, as revere the same. Resultantly, in the light of the above conclusion, we, have no hesitation in concluding, that, the complainant has abysmally failed to substantiate his attribution in the complaint, that, their was gross negligence on the part of the doctor, who performed the operation.

10. The result of the above discussion, is, that the complainant has miserably failed to prove any medical negligence on the part of the OPs, as well, as, deficiency in service, hence, we, have no hesitation in concluding that this complaint being merit-less, is, liable to be dismissed. Ordered accordingly. No order as to the costs.

11. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.