BEFORE: HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER HON’BLE DR SADHNA SHANKER, MEMBER For the Appellants Mr Zubin Mehta and Mr K J Mehta, Advocate For the Respondents Ms Angna Dewan, Mr Shallen Srivastav & Mr Dharmesh, Advocate for L R ORDER PER MR SUBHASH CHANDRA 1. This First Appeal challenges the order dated 13.08.2018 in complaint no.80 of 2014 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, ‘the State Commission’) allowing the complaint of the respondent and directing payment of Rs.1.00 lakh towards hospitalization, medicines and treatment of the respondent with interest @ 9% per annum from the date of the complaint till realization along with Rs.5.00 lakh towards mental agony with similar interest and Rs.25,000/- towards cost of litigation along with 9% rate of interest for the period. 2. IA No.4869 of 2019 praying for condonation of delay of 51 days is allowed and the delay is condoned in the interest of justice for the reasons stated in the IA. 3. We have heard the learned counsel for the parties and have carefully perused the material on record. 4. The relevant facts of the case, in brief are that the respondent underwent, at the advice of the appellant no.1, an IOL Implant operation (cataract eye operation) on 14.05.2014 in the appellant no.2 hospital. While the operation was successful, there was congestion (redness) in the eye and corneal oedema was noticed. The respondent was discharged from hospital. The respondent’s vision was found to be 6/9 which in ophthalmological terms, means ‘normal’ vision. On the ground that congestion of corneal oedema was not uncommon in patients suffering from diabetes and hypertension, which the respondent was suffering from, he was advised to get his diabetes checked with his doctor and take care as advised by his physician. The respondent consulted various doctors after the operation and obtained further medical opinion. He then filed a complaint with the State Commission alleging medical negligence on the part of the appellant, alleging that the operation had not been successful which led to almost loss of vision of his right eye due to negligence during the operation and improper post-operative care. The respondent claimed refund of approximately Rs.1.00 lakh for the treatment and related expenses along with compensation for harassment and deficiency in service and Rs.20 lakh as compensation on account of loss of vision Rs.10 lakh and litigation expenses of Rs.51 lakh. The complaint was decided on contest, which order is impugned before us. 5. It is the contention of the appellant that pre and post-operative ocular and systematic evaluation including vision, auto refraction reading, subjective refraction, evaluation of the extra ocular movement, intra-ocular pressure with non-contact tonometer, dilated slit lamp and fundus evaluation, keratometry ultra sound and scan biometery, systemic evaluation for blood pressure, random blood sugar, etc., of the respondent was undertaken. Sensitivity tests for xylocaine and sensorcaine were also conducted. On the day of the operation also the blood sugar test was conducted on the patient. A qualified anesthaetist conducted the pre-anaesthetic check-up and was present during the course of the operation and for immediate post operation care. During the period when the respondent was in the hospital he had complete vision and the report of the four doctors submitted by the respondent before the State Commission mention that his vision post operation was 6/9 which is noted ophthalmologically as ‘normal’ vision. 6. The appellant therefore, states that the outcome of the operation was normal vision though IOL implant and that the State Commission had erred in holding that there was medical negligence on part of the appellant since corneal oedema or excessive swelling in a diabetic patient such as the respondent was normal in a cataract surgery. Such a swelling caused a haze to the vision which in course of time with regular medication was overcome with medication. It was also contended that the respondent’s vision of 6/9 post operation was equivalent to the vision standards for pilots prescribed by the Civil Aviation Authority and therefore, the conclusion of medical negligence and conclusion by the State Commission was incorrect and required to be set aside. 7. Per contra, it was contended by the respondent (since deceased) and respondent’s legal representative on record, that the appellant no. 1, was aware that the respondent suffered from hypertension and diabetes and despite that awareness failed to monitor the blood pressure and blood sugar levels on the day of the operation. It was contended that the respondent complained of discomfort of continuous bleeding in his right eye after the operation. However, the appellant no.1 discharged him on the same day without attending to the bleeding or providing any information on the post-operative care except prescribing some eye drops. It was also stated that the Discharge Summary dated 15.05.2023 prepared by the appellant had wrongly stated that the respondent stayed overnight at the hospital. It was contended that on 16.05.2013, appellant no.1 was not available as he had left for vacation abroad without informing the respondent or making alternative arrangements and therefore, the respondent had to see another ophthalmologist in appellant no.2 hospital who refused to prescribe any medicine in the absence of appellant no.1. It was also contended that the respondents’ left eye was also affected as a consequence of the operation. It is the case of the respondent that the impugned order was correct and needed to be upheld since the respondent was a ‘consumer’ qua the appellant. 8. Reliance was placed of this Commission’s judgment in Jayalakshmi vs Hosmat for Orthopaedics Sport Medicine, Arthritis, Neuro & Accident Trauma 2009 SCC Online NCDRC 111 and on the judgment of the Hon’ble Supreme Court in Jacob Mathew vs State of Punjab (2005) 6 SCC I and it was contended that the appellant no.1 did not follow the normal practice required in a cataract operation and failed to provide the required post-operative care. It is the respondent’s case that discharge of the respondent from the hospital without monitoring the eye was contrary to what a professional man of ordinary skill would have done. 9. The issue which falls for consideration is whether there was any medical negligence on the part of appellant nos.1 and 2 in the conduct of the surgery and post-operative care to the respondent. 10. The finding of the State Commission is as under: “Both the parties were heard and records were perused. The complainant was having cataract in his right eye which was examined by opposite party no.1. The opposite party no. operated in opposite party no.2 hospital with FENKO Technology and lens were replaced but the complainant’s eye continues to bleed. He visited hospital repeatedly for check-up but no attention was given. If the complainant was a patient of B P and diabetes, then it was the duty of opposite parties to examine and check him up completely and the operation should be done after the normal level of BP and diabetes, the vision which ought to have been 6/6 was changed to 6/9 which caused difficulty in vision. Therefore, this was result of negligence and irresponsibility of the opposite parties. Since, the complainant had made payment for the operation, the complaint fails within the category of consumer. The complaint is allowed with the following directions: - The expenses incurred by the complainant in making payment to the hospital, medicines and treatment of Rs.1,00,000/- with 9% rate of interest per annum from the date of complaint 15.09.2014 till the payment of amount;
- The complainant’s eye was damaged and an amount of Rs.5,00,000/- was awarded towards mental agony along with 9% rate of interest per annum from 15.09.2014 till the amount is paid;
- Complainant be paid Rs.25,000/- towards cost of litigation along with 9% rate of interest per annum from 15.09.2014 till the amount is paid.
11. In the instant case, the respondent was admitted for cataract operation of the right eye using IOL technique. Admittedly, the respondent was a patient of diabetes and hypertension. The respondent has contended that on the date of the operation, the appellant failed to monitor his blood pressure which resulted in bleeding in his eye after the operation. It is not the contention of the respondent that appellant no.1 did not execute the surgery properly. The allegation of medical negligence is only limited to the extent that blood pressure and diabetes of the respondent was not monitored and therefore, bleeding occurred and there was lack of care in discharging the patient and thereafter, the appellant no.1 was not available to provide further follow-up care. 12. On the other hand, the appellants have elaborately brought on record that the respondent’s blood sugar and blood pressure was monitored prior to the surgery and a qualified anesthetist was also available during the operation and immediately thereafter till the stage of post-operative care. They have also argued that other doctors consulted by the respondent have opined that the respondent’s vision, post-operation, was 6/9 which is ophthalmologically considered to be ‘normal’ vision. It has also been brought on record that various tests had been conducted both prior to and post operation. It is the contention of the appellant that in patients with diabetes and high blood pressure ocular oedema is possible but the same can be managed with eye drops for some period of time. It is not denied by the respondent that the patient in question had suffered from diabetes and blood pressure. It has also not denied that the post-operative vision standard was 6/9. The only grievance seems to be that the respondent had to be discharged even with redness in his eye and that the appellant no.1 had not been available to attend to him and that after two days of the operation he travelled abroad on vacation. 13. The Hon’ble Supreme Court in the case of Jacob Mathew (supra) has held as under: 35. Deviation of normal practice is not necessarily evidence of negligence. To establish liability on that basis it may be shown (i) that there is a usual and normal practice; (ii) that the defendant has not adopted it; (iii) that the course in fact adopted is one no professional man ordinary skill would have taken had he been acting with ordinary care. 14. The conclusion of the State Commission that there was medical negligence in the matter is not supported by any finding to establish that there was any lack of medical care as per the standards prescribed for cataract operations. Respondent has also not brought on record any expert opinion to establish the same. 15. In the light of the material on record and the prescription for establishing medical negligence in Jacob Mathew (supra), we find that the State Commission has erred in concluding medical negligence in this case, merely because the patient had some bleeding in the eye leading to redness and ocular oedema which resulted in alleged loss of vision, since the vision post operation was 6/9 which is considered to be ‘normal’ as per ophthalmological standards. For these reasons, it cannot be concluded that there was medical negligence or deficiency in service warranting the awarded of compensation as awarded by the State Commission. 16. In view of the discussion above, we find that the appeal has merits and is accordingly allowed. The order of the State Commission is set aside with no order as to cost. 17. All pending IAs, if any, stand disposed of by this order. | 
