State Consumer Disputes Redressal Commission
Dr Kunal Kiran Kondewar vs Balram Murlidhar Ratnaparkhi on 30 November, 2021
1 A/67/2018
Date of filing :00.00.2000
Date of order :30.11.2021
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, BENCH AT AURANGABAD.
FIRST APPEAL NO. : 67 OF 2018
IN COMPLAINT CASE NO.: 74 OF 2016
DISTRICT CONSUMER FORUM : HINGOLI
Dr.Kunal Kiran Kondewar
R/o Naiknagar, Hingoli,
Dist.Hingoli. ...APPELLANT
VERSUS
Baliram Murlidhar Ratnaparkhi,
R/o Jijamatanagar, Hingoli,
Tq. & Dist.Hingoli. ...RESPONDENT
CORAM : Smt.S.T.Barne, Hon'ble Presiding Judicial
Member.
Mr.K.M.Lawande, Hon'ble Member.
Present : Adv. I.G.Durani for appellant/org.opponent,
Adv. Seema Malode for respondent/org.complainant.
JUDGMENT
(Delivered on 30/11/2021) Per Mr.K.M.Lawande, Hon'ble Member.
1. Being aggrieved by the judgment and order dated 30.01.2018 passed by District Forum , Hingoli in C.C.No.74/2016, appellant has preferred this appeal.
2. The appellant is the opponent and the respondent is the complainant in complaint No.74/2016 before the District Consumer Dispute Redressal 2 A/67/2018 Forum,Hingoli. The appellant and respondent are hereinafter referred to as 'opponent ' and 'complainant' as per their status in the complaint and District Consumer Dispute Redressal Forum is referred to as 'District Forum' for the sake of convenience.
3. The facts of complainant's case in brief are as follow.
It is the case of complainant that he was suffering from the problem of watering of eyes and inflammation to his left of eye. It was told by the opponent that there is injury to his eyes, however the injury was not explained by the opponent doctor and advised him for immediate operation. The complainant therefore carried blood test from Mahajan Hospital and B.P. test from Dr.Jawalekar as per the advise of opponent. After receipt of required reports on pre checkings, the complainant deposited Rs.10,000/- with opponent Doctor as per his instructions on 06.03.2014. The opponent doctor operated him on left eye on that day and informed the complainant that his operation is successful. He asked the complainant to come for dressing and checking on the next day. However, the complainant told the opponent that he could not see anything when dressing was removed and eye was tested on next day for vision. The opponent pacified complainant and asked him to continue medicine for 2 months. The complainant used medicine for two months, however there are no results. Thereafter he approached the opponent doctor and informed him of his problem. But the opponent doctor gave evasive reply to him and asked him to visit Dr.Tammewar to shirk his liability. He visited Dr.Tammewar on 29.04.2014, who examined the complainant and informed that he was 3 A/67/2018 operated wrongly and there is no solution for it and gave him one medicine/drops. The complainant could not get relief by applying that medicine. When contacted to opponent doctor, he asked the complainant to visit MGM Centre at Aurangabad. The complainant visited the MGM, where also he was told that the operation to his left eye has been done negligently and his eye has lost the capacity of vision. The complainant visited Dr.Prajakta Gawande, Varad Netralaya, Aurangabad, Dr.Nalgirkar, Kamal Nayan Bajaj Hospital Aurangabad, Sasvade Netralaya, Aurangabad and Dr.Sudhir Mahashabde Netralaya, Indore however of no use. These doctors also informed orally to the complainant that he has lost sight due to operation which was performed in wrong way. The complainant visited Civil Hospital Hingoli and was also examined there and was given the similar reply and is issued disability certificate to him. The complainant further issued legal notice on 17.03.2016 to opponent doctor asking him to pay compensation of Rs.5 lacs and expenditure incurred of Rs.80,000/-, however it was not complied by opponent Doctor. The complainant is consumer of opponent doctor. Due to alleged deficiency in service on the part of opponent doctor, the complainant has filed consumer complaint for getting the compensation of Rs.5 lacs and expenditure of Rs.80,000/-.
4. The opponent doctor filed written version before the District Forum and contended that the complainant has filed complaint on 13.6.2016, when the operation was done on 06.03.2014. The complaint is not filed within prescribed period of limitation. The complainant has approached the opponent doctor on 12.12.2013 in a eye camp and complained about his 4 A/67/2018 reduced vision of left eye. There was no complaint of watering of eye, reddening of eye. After examination it was found that he had cataract in his left eye. He was asked for, to come again on 17.12.2013 for further investigation. The opponent came on 17.12.2013, when he was advised for cataract operation. However, he did not turn up to February 2014. When he came in February 2014, he was asked to undergo blood test, diabetes etc. and fitness. He obtained fitness certificate from Dr.Madhavi Ghatte who recommended for operation after stabilisation/normalisation of complainant's blood pressure. The complainant also obtained fitness certificate from Dr.Jawalekar on 03.03.2014 who also gave same recommendation. He operated complainant on his left eye by phaco type of surgery. He received Rs.10,000/- towards operation fees. There is no negligence on the part of opponent doctor in performing the operation. The opponent also gave information to the complainant about benefits and anticipated problems and treatments required in future. He has also obtained consent of complainant for said operation. It is denied that the complainant could not see with said eye on the next day of operation. It is replied that his the eye sight was retained, though there was swelling to his eye. It is denied that he gave evasive reply to the complainant when he visited the opponent after two months and was advised to see Dr.Tammewar to shirk responsibility. The complainant was asked to see Dr.Tammewar after 3 weeks. It is further contended that the complainant neglected his advise and visited Dr.Saswade on 14.04.2014. He received treatment there. It was seen that he had sight to his left eye in the examination of Dr.Saswade and was also advised to undergo vitrectomy +AK operation.
5 A/67/2018 Dr.Saswade also asked the complainant to continue the medicine/drops prescribed by the opponent. There is no opinion as to negligence of opponent doctor in performing the operation. The complainant had approached the opponent doctor on 19.04.2014 when he was asked why did not he visit Dr.Tammewar. The opponent again asked the complainant to see Dr.Tammewar. But the complainant did not follow his advise and approached Dr.Gawande, on 25.04.2014, who also advised him to see Dr.Tammewar. The complainant approached Dr.Tammewar on 29.04.2014. Dr.Tammewar advised him to see Dr.Nalgirkar at Kamalnayan Bajaj Hospital, Aurangabad. It is denied that the Dr.Gawande, Dr.Saswade, Dr.Mahashabde, Dr.Tammewar gave opinion that the operation performed by opponent on the eye of complainant was done wrongly. Dr.Nalgirkar has also advised the complainant on 07.05.2014 to go for DASEK type operation. However, he did not listen to the advise. The complainant has not approached the opponent after April 2014. It is denied that the complainant has lost sight due to negligence of opponent doctor and there is deficiency in service imparted by opponent doctor towards the complainant.
5. The District Forum has allowed the complaint partly and directed the opponent doctor to pay Rs.80,000/- towards the expenditure of operation within 30 days with interest @ 9% p.a. from the date of receipt of the order. The District Forum also awarded Rs.5,000/- towards mental and physical agony and Rs.3,000/- towards cost of litigation.
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6. Being aggrieved by the impugned judgment the opponent doctor filed this appeal on following grounds.
That, the complaint is not filed within stipulated period of limitation prescribed under law. The complainant also issued notice beyond the limitation period on 17.3.2016. The ld. District Forum erred in relying upon the report of experts. The experts have not examined the complainant and not gone through the treatment papers of alleged operation dt.06.03.2014. The experts have also specifically observed that the patient was having corneal opacity in his left eye. The said disorder occurs due to scarring of cornea, making the cornea appear cloudy/white and this is the reason for loss of vision of left eye of complainant. The disability certificate shows vision to both eyes of complainant is less. It is unjust and illegal to hold opponent doctor responsible for vision loss to left eye of complainant.
That, the learned District Forum totally erred in taking into consideration the fact that, if the appellant was negligent in performing the cataract operation of left eye of the complainant, then the complainant might have lost his 100% vision immediately after the operation. Here though the complainant got examined by several doctors, none of them have opined that, the cataract operation of the complainant was performed in negligent manner. On the contrary, all the doctors found that , the complainant was having vision to his left eye, which was operated. As such for loss of vision capacity the age factor is also one of the common ground, which is also not considered by the learned District Forum.
7 A/67/2018 The actual vision of the complainant before undergoing cataract operation is not brought on record by the respondent/org.complainant. Therefore, the consumer forum as well as the experts have totally erred in holding the appellant as responsible for vision loss of the respondent/org.complainant.
In the present case, instead of referring the complainant to medical board for calling its opinion, only certain documents produced on record by the complainant are forwarded to the Civil Surgeon, in which the treatment papers of the day of operation were not made available.
Experts have not given any comment in respect of any kind of medical negligence on the part of the opponent.
In catena of judgments by the Hon'ble Apex Court held that "no expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of question put to him". In the Article "Relevancy of Expert's opinion" it has been opined that the value of expert opinion rest on the facts on which it is based and also the validity of the process by which the conclusion is reached.
"Mere assertion without mentioning the data or basis is not evidence, even if it comes from expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value".
The complainant has not adduced any evidence in support of his complaint regarding medical negligence as against the present appellant.
8 A/67/2018 It is well settled law that, a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
The learned District Forum further totally erred in taking in to consideration the fact that, delay in treating the affected eye is also one of the reason for loss of vision. In the present case, since beginning if the approach of the complainant in responding the advises given by the doctors if taken into consideration it shows that, every time the complainant has delayed or avoided to act upon the advises of doctors.
The learned District Forum totally erred in referring the matter for expert's opinion that to without obtaining any consent or without giving an opportunity to the appellant to file the relevant treatment papers before the experts.
That, initially the matter was referred to the District Civil Surgeon, Hingoli, of which the report is filed on record, in which the concerned District Civil Surgeon has not given any opinion on the point of negligence on the part of the appellant. However by keeping aside the said report from consideration, the learned District Forum for no reason again referred the matter to District Civil Surgeon, Parbhani that to without consent of the parties. The documents which were initially forwarded to District Civil Surgeon, Hingoli, same documents were forwarded to District Civil Surgeon, Parbhani.
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7. Heard Adv.I.G.Durani for appellant/org.opponent and Adv.Seema Malode for respondent/org.complainant.
8. From the submissions of parties, following points arise for our consideration. We have noted them along with findings against it for the reasons to follow.
Points Answers
(i) Whether the complainant established
deficiency in service on the part of opponents ? - ..In negative.
(ii) Whether there requires interference in
the judgement and Order of the Dist.
Forum? ..In affirmative
(iii) What order? - As per final order
REASONING
Points (i), (ii),(iii) :
9. It is argued by learned advocate for the appellant/org.opponent that the complaint is time barred. The complainant may have cause of action on 06.03.2014, i.e. the day of operation and he has filed the complaint on 13.06.2016. The complaint is beyond period of limitation. The District Forum has not considered this aspect. The complainant was checked on 17.12.2013 and was advised for immediate cataract operation. However, he delayed the operation till 06.03.2016. The opponent performed the surgery for treating cataract by phacoemulsification type of surgery. The operation was eventless. Before operation, the reading of vision of right eye and left 10 A/67/2018 eye are 6/9 and 6/36. After operation the vision was good. The opponent prescribed medicine on swelling. On 15th day vision of right eye was 6/9 and left eye was 6/36 C PH 6/24. During examination after 21 days, it was found that corneal odema was not improving though vision was present and therefore the opponent doctor advised him to see Dr.Tammewar, specialist in retina and cornea . However he did not pay attention to the advise and instead visited other doctors. The complainant visited Dr.Tammewar on 29.4.2014 who has advised the complainant for DASEK surgery by Dr.Nalgirkar at Kamalnayan Bajaj Hospital. It appears that he did not listen to said advise and neglected to undergo the said special surgery. The complainant himself is responsible for his loss of vision. There is gradual loss of vision during two years due to old age due to corneal effect. Due to non-treatment of cornea for DAESK surgery oedema and Straik Keratography can occur after cataract operation. Delay in treating the affected eye is also one of the reason for the loss of vision. The District Forum Parbhani initially called report from Civil Surgeon, Hingoli. The Civil Surgeon, Hingoli submitted report with opinion that it is not possible to give opinion in respect of complications doing phacoemulsefication surgery done by opponent. However , the District Forum further called report from Civil Surgery, Parbhani while calling said report, no consent of opponent was taken nor any opportunity of hearing was given by the expert committee. Also the expert committee has not examined the complainant personally. While giving said report the expert committee has not gone through the treatment papers of opponent doctor. Such report cannot be relied upon in deciding the complaint. There is no application of mind and 11 A/67/2018 following the procedure of law by the committee. Also the observation of the committee that the patient was having corneal opacity in his left eye is not considered by District Forum. The corneal opacity is an eye disorder that occurs due to scarring of cornea, making the cornea appearing cloudy or white and this is the reason for loss of vision of left eye of the complainant. The expert committee has also not given any comment in respect of any king of medical negligence on the part of opponent while treating the patient. It cannot be forgotten that complainant is over and above is 75 years of age. If disability certificate issued by the authority is perused, it also goes on showing that the vision of both the eyes of complainant is less. The complainant has visited many doctors and all the doctors found that the complainant was having vision to his left eye. None of the doctors have opined that the cataract operation of the complainant was performed in negligent manner. The complainant has not brought any evidence for what was his actual vision before operation. There is no evidence on record showing that complainant was having normal eye sight before operation. The experts have totally erred in holding opponent doctor responsible for loss of vision of complainant. The corneal endothelial decomposition can occur after cataract extraction rare but known less than 1% incidence. The cataract is microsurgical procedure. The straite keratography can occur after surgery. The complainant was explained this in every visit , he was advised of cornea specialist opinion. He was advised for DASEK surgery, however it is avoided by him. The DASEK surgery requires to be taken within 2 to 3 months. Not taking treatment further leads to visual loss.
12 A/67/2018 Learned advocate for appellant/org.opponent has relied upon following citations.
i) In Dr.V.N.Shrikhande -Vs- Mrs.Anita Sena Fernandes, Civil Appeal No.8983 of 2010(arising out of S.L.P.(C) No.5479 of 2009), decided on 20.10.2010 , reported in AIR 2011 Supreme Court 212, it is held by Hon'ble Supreme Court that admission of complaint filed under Act should be rule and dismissal thereof should be exception. But if complaint is barred by time, consumer Forum is bound to dismiss same unless consumer makes out case for condonation of delay.
ii) In Ramesh Chandra Agrawal -Vs- Regency Hospital Ltd. & ors. , Civil Appeal No.5991 of 2002, decided on 11.09.2009, reported in AIR 2010 Supreme Court 806, it is held by Hon'ble Supreme Court that expert is not witness of fact. His evidence is of an advisory character. The credibility of such evidence depends on reasons stated in support of his conclusions and data and material furnished which form basis of his conclusions.
The court also held necessity of forwarding all the record of treatment to expert committee. The court held that failure of Asstt.Registrar to forward all records of treatment and vital information to said expert. In such cases expert would not be in position to form a true opinion is all the documents pertaining to the matter, on which the opinion is desired are made available to him. The Commission on the application made by the appellant should 13 A/67/2018 have again directed for the expert opinion after making all the records of treatment available to the expert.
iii) In Kusum Sharma and ors. -Vs- Batra Hospital and Medical Research Centre and Ors, in Civil Appeal No.1385/2001, decided on 10.02.2010, reported in AIR 2010 Supreme Court 1050 , the Hon'ble Supreme Court held that as long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they can not be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.
iv) In State of Haryana and ors. -Vs- Raj Rani, Civil Appeal No.2743 of 2002 with C.A. Nos. 6417 of 2002, 5312, 6272 of 2003, 5316 and 1359 of 2005 decided on 29.8.2005 reported in AIR 2005 Supreme Court 3279, wherein the Hon'ble Supreme Court held that doctors cannot be made to pay compensation without proof of negligence.
v) In Dr.Harish Kumar Khurana -Vs- Joginder Singh and others, in civil appeal No.7380/2009 dt 07/11/2009, wherein it is held that, "it is clear that in every case where treatment is not successful or the patient dies during the surgery it cannot be automatically assumed that medical professional was negligent. To indicate there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring in which event the principle of res ipsa loquitor could be made applicable and not based on perception".
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vi) The Honourable Supreme Court in Jacob Mathew Vs State of Punjab and another 2005 6SCC1 wherein it has been held that "the true test for establishing negligence in diagnosis or treatment on the part of doctor is has been proved to be guilty of such failure doctor as no doctor ordinary skill would be guilty of, if acting with ordinary care."
vii) In Martin F. D'Souza -Vs- Mohd.Ishfaq (2009)3 SCC 1, wherein it is stated that, "simply because the patient has not favourable responded to treatment given by doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of res ipsa loquitur." It is further observed there in that "sometimes despite best efforts doctor fails and the same does not mean that the doctor or the surgeon must be held guilty of medical negligence unless there is strong evidence to suggest that the doctor is negligent."
viii) In Kishan Rao vs Nikhil Super Speciality Hospital and another reported in (2010)5 SCC 513 to contend that the decision in the case of Martin F.D'Souza where in general direction is given to secure medical report at preliminary stage is held to be not treated as a binding precedent and those directions must be confined to the particular facts of the case. It is held that in a case where negligence is evident, the principles of res ipsa loquitur operates.
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10) It is argued by learned advocate for complainant that at the time of initial checking on 17.12.2013 the opponent doctor failed to inform the complainant what type of injury is caused to the left eye of the complainant and simply advised for operation. The opponent doctor operated on the left eye of the complainant on 06.03.2014. On the next day of operation, when bandage was removed and complainant was examined for the vision, the complainant then and then only had informed the opponent doctor that he could not see with his left eye. The complainant used medicine/drops suggested by the opponent doctor for two months. However no results were achieved. On visiting and informing the problem, the opponent doctor did not reply satisfactorily and advised to get treatment from Dr.Tammewar. The complainant visited Dr.Tammewar on 29.04.2014 and Dr.Tammewar informed orally to the complainant that the operation to his left eye is done wrongly and there is no treatment to recover. The complainant was approaching the opponent doctor. The opponent doctor suggested to visit MGM, Dr.Gawande, Dr.Nalgirkar, Dr.Saswade and Dr.Sunil Mahashabde, Indore. The complainant has taken treatment of these doctors. These doctors replied to the complainant that the operation of left eye of the complainant is done wrongly. The complainant has approached Government Hospital, Hingoli, where the complainant was informed that his left eye is damaged and there is no further treatment and they issued disability certificate to the complainant. The complainant visited opponent doctor and asked for compensation towards the damage of his eye. It was not responded by the opponent doctor. The complainant has also issued 16 A/67/2018 legal notice to the opponent, however it is not replied. The complainant therefore was compelled to file the present consumer complaint.
The advocate further argued that, the opponent doctor has not denied acceptance of fees of Rs.10,000/- for operation and performance of operation on the left eye of the complainant. The opponent doctor has also admitted that he has advised further to see other doctor Dr.Tammewar for treatment. This is admission of opponent for his negligence act in operation. The complainant has continuing cause of action. So he was getting treatment from various doctors as per suggestion of opponent doctor. After receipt of medical certificate dated 21.12.2015 and after issuing legal notice, the complainant has filed the consumer complaint. The opponent doctor has also admitted that he has checked the complainant after 45 days after operation. The complainant has visited Dr.Saswade as per the advise of the complainant. After perusing the documentary evidence, there reveals 100% loss of eye sight of complainant's left eye . The documents from MGM Hospital also speaks the same. The opponent is silent in respect of disability certificate. The expert committee included the experts and these experts have opined that loss of eye sight of complainant is due to wrong operation done by the complainant. The District Forum has rightly considered the facts, appreciated the evidence while passing the order. The learned advocate also objected filing of case papers which were not before the District Forum. She argued that the opponent had enough opportunity of filing these documents before the District Forum. Lastly, the ld.advocate for the complainant has submitted the following citations and argued that, 17 A/67/2018 In Martin F. D'Souza -Vs- Mohd.Ishfaq (2009)3 SCC 1, the court gave following directions.
"We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Forum(whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/ hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warm the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action".
11) On hearing both the parties, on perusal of the documents, it appears from the document at page number 33 that the complainant has visited the opponents Hospital on 17/12/2013 where his vision/visual acuity was tested and was found for right eye as 6/9 and for left eye as 6/60. It was showing apparently more poor vision of the left eye. It appears from the said treatment paper that necessity of PSC( Posterior Subcapsular Cataract) was also diagnosed. The document also speaks of another problem of RPE atrophy/atrophy of the Retinal Pigment Epithelium (RPE).For the information as to RPE , we attempted to understand the term when we 18 A/67/2018 gathered that RPE has significant role in image formation due to pigments at epithelium of retina and the atrophy is the lowering strength vision of the eyes due to various reasons including old age. It appears that the complainant was suggested for cataract surgery to his left eye by the opponent doctor.
12) From the document Yashwant Hospital , Hingoli which is at page number 35 of appeal compilation , suggesting that the complainant was checked for pre operation tests including blood pressure and was recommended for cataract after surgery after normalisation blood pressure.
13) It is the case of complainant that he is operated for cataract for his left eye on 06/03/2014 by the opponent doctor and he lost vision of the left eye due to the alleged surgery. It is also alleged that the opponent doctor advised to the complainant to take treatment for two months for clear vision.
14) It is alleged that ,observing no results of improvement in vision , the complainant approached the opponent doctor when he was advised to see Dr.Tammewar. It Is alleged that the complainant lost vision of his left eye due to negligence of doctor in said cataract operation.
15) It is also not denied by the complainant that he was not checked for various pre-operation tests including blood pressure. It is revealed that the complainant was checked by doctor Jawalekar on 03.03.2014. It is not alleged that pre operation tests are not asked by the opponent doctor.
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16) The papers of alleged operation are filed by the opponent in his notes of arguments. The document reads as operation was done under aseptic precautions. Conjunctiva resected, corneo scleral tunnel made ,CCC done , Hydro dissection opted, phacoemulsification of nucleus done ,PCIOL placed , air bubble placed, wound closed and PB done. Complications are reported as nil. The document about post operative notes of day 1 ,7 and day 15 are also on record.
17) It reveals that, the complainant has not brought evidence for specific allegation as to failure in taking any particular step during the operation. We are informed by the treating doctor that PCIOL is artificial lense to replace the defunct , turbid lense of natural eye for improving the vision is called as cataract operation. We have perused the post operative notes of day 7 and 15 , it appears that the vision was 6/60 PH 6/36 on 7th day and 6/36 with 6/24 on 15th day. It can not be said that the complainant lost the vision during the postoperative period of 7 or 15 days.
18) It appears from the post operative notes of 15th day that that the complainant is also advised to have cornea /retina consultant opinion .The complainant is also contending that he was asked to see Dr.Tammewar. It was informed by the opponent treating doctor that the Retina is a separate part of eye where image is formed and which is connected to brain through fibres/nerves. The complainant had not come with particular evidence that the treating doctor failed in taking particular treatment or he adopted methodology /protocol contrary to established procedure. Referral to 20 A/67/2018 retina/cornea expert can not be accepted as negligence on the part of treating doctor. Treatment papers also shows presence of SKS marks in the eye region. Therefore, the particular advise by opponent doctor of retina specialists can not be condemned.
19) It is alleged by the complainant that he visited doctor Tammewar on 29/04/2014 and he told the complainant that the operation done by the doctor has went wrong and there is no treatment to it.
20) It Is also alleged by the complainant that visited other doctors including doctor at MGM Aurangabad as per the directions of the opponent doctor and he is informed that his cataract operation was done wrongly . It is also alleged that he visited doctor Prajakta Gawande of Varad Netralaya Aurangabad, doctor Nagalikar at Kamalnayan Bajaj hospital, Dr.Saswade Netralaya at Aurangabad, Dr.Sudhir Mahashabde Netralaya, Indore.And all these doctors informed the complainant for wrong operation done to his left eye. However , there is no documentary evidence that all these doctors informed him of the wrong operation to support his allegation except his verbal say.
21) It is also alleged that Government hospital Hingoli issued him disability certificate. Issuance certificate can not be inferred that it is due to failure of cataract operation.
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22) There is written version of doctor that the opponent checked the complainant on 12/12/2013 and was asked to come for operation on 17/12/2013. It is contended that the complainant himself delayed in coming for operation. We perused the first checking report of complainant which is dated 17/12/2014 and the date of operation is 06/03/2014.Therefore there appears substance in the said contention of opponent doctor that, complainant caused delay in visiting him for carrying operation.
23) It is contended by the opponent doctor that the complainant came to him in February 2014 and was checked by doctor Madhuri Ghatte on 24/02/2014 with advice for operation after normalisation of BP. It is contended that Dr.Agasti Javalekar issued fitness certificate to the complainant on 03/03/2014 before the operation done by the opponent doctor.
24) The opponent doctor also replied that the vision was retained in operation. From the perusal of postoperative observations of day 7 and 15 ,it appears that the vision was 6/60 PH 6/36 on 7th day and 6/36 with 6/24 on 15th day.
25) It is replied that there was swelling old age of the complainant. It is further contended that the opponent doctor advised complainant to visit Dr Tammewar and the complainant neglected it. There is treatment paper dated 19/04/2014 where opponent doctor referred complainant to visit 22 A/67/2018 Dr.Tammewar, Retinologist. As there existed problem of RPE atrophy already , the advise to see retinologist appears right .
26) It appears that the complainant visited Sasawade Netra Rugnalaya on 14/04/2014. It also infers that Dr.Saswade also suggested complainant for keratoplasty +AK, reformation and vitrectomy surgery.
27) There is treatment paper dt 03/05/2014/p (page No.49) which reveals that the complainant visited the MGM Institute and is advised to see cornea specialist Dr.Nalgirkar. It appears that there is no further treatment or operation to the retina of the complainant to his left eye. Therefore it can not be denied that the problem of RPE/retinal atropy severed was sustaining during these days (old age) and resulted in loss of sight of complainant.
28) There appears two reports from Civil surgeon Hingoli and Civil Surgeon, Parbhani. From The report of civil surgeon Hingoli which is dated 18/03/2017 (page 71 of appeal compilation), it reveal from said report that the authority expressed inability to give opinion as to medical negligence in absence of documents of operation and post operative notes. However, there is one more report from civil surgeon Parbhani dt. 18.12.2017 ( report at page 73 & 74 of appeal compilation) giving opinion that opponent doctor operated on the left eye of the complainant and the complainant lost the vision gradually after the operation and there is total loss of sight.
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29) However, from the observations it can be inferred that, the complainant was having the cornea problem. There are documents of earlier examination prior to operation which state that, the problem was also reported prior to operation by opponent doctor in his checking on 17/12/2013. It is not denied by the complainant that he had not cataract problem and retina problem both. The expert committee report from civil Hospital parbhani dt. 18/12/2017 is showing that, after operation eye sight was gradually lost. But there is no specific opinion that, due to wrong operation eye sight is affected. Hence, said expert report cannot be accepted to infer loss of vision out of cataract operation. The complainant has not brought any evidence that the cataract operation impacted the cornea and retina. It appears that the Civil Surgeon Hingoli vide issuing disability certificate for visual impairment opined that the complainant's both eyes are suffering with RE Psedophakia ARMD LE Adherent Leucoma VN RE6/18 LE NO PL. It reveals from this certificate, ARMD/age related macular diseased is cause of visual impairment of both the eyes. Therefore keeping factor of ARMD aside ,it can not be inferred that total visual impairment of complainant's eye occurred only due to cataract operation.
It appears that the complainant delayed his first operation of cataract and also treatment to cornea retina through retina specialist.
30) The ld advocate of the opponent also strongly objected the report the ground that complainant was not referred to the medical board for examination. Certain documents were only forwarded and on the basis of these documents the so-called expert committee attempted to give report.
24 A/67/2018 The expert committee has also not given specific comments in respect of medical negligence referring particular document that, particular care not taken or negligently handled the cataract operation. It is contended that during old age there is occurrence of problem of ARMD /age related macula degeneration of retina generally. The learned advocate also argued that the literature shows there are chances of corneal endothelium cell loss after cataract surgery of around 5 to 8%. The risk factors include a shorter axial length and longer phacoemulisification time. Corneal decomposition following cataract surgery is more common in those patients with pre- existing endothelium cell dysfunction causing decomposition. For that he referred research article on corneal edoma after cataract surgery. It has also happened in the given case. We agree with this submission of learned advocate as the age of complainant is 75 years.
He also relied upon the following citations .
i) Dr.V.N.Shrikhande -Vs- Mrs.Anita Sena Fernandes, Civil Appeal No.8983 of 2010(arising out of S.L.P.(C) No.5479 of 2009), decided on 20.10.2010 , reported in AIR 2011 Supreme Court 212.
ii) Ramesh Chandra Agrawal -Vs- Regency Hospital Ltd. & ors. , Civil Appeal No.5991 of 2002, decided on 11.09.2009, reported in AIR 2010 Supreme Court 806.
iii) Kusum Sharma and ors. -Vs- Batra Hospital and Medical Research Centre and Ors, in Civil Appeal No.1385/2001, decided on 10.02.2010, reported in AIR 2010 Supreme Court 1050.
iv) State of Haryana and ors. -Vs- Raj Rani, Civil Appeal No.2743 of 2002 with C.A. Nos. 6417 of 2002, 5312, 6272 of 2003, 5316 and 25 A/67/2018 1359 of 2005 decided on 29.8.2005 reported in AIR 2005 Supreme Court 3279.
v) Dr.Harish Kumar Khurana -Vs- Joginder Singh and others, in civil appeal No.7380/2009 dt 07/11/2009.
vi) Jacob Mathew Vs State of Punjab and another 2005 6SCC1.
vii) Martin F. D'Souza -Vs- Mohd.Ishfaq (2009)3 SCC 1
viii) Kishan Rao vs Nikhil Super Speciality Hospital and another (2010)5 SCC 513.
31) Though the advocate of the complainant relied upon the ratio of Hon'ble Supreme Court in Martin F. D'Souza -Vs- Mohd.Ishfaq (2009)3 SCC 1 and argued that the action of calling expert report by District Forum is therefore justified.
However, the Hon'ble Supreme Court in Kishan Rao vs Nikhil Super Speciality Hospital and another (2010)5 SCC 513 held in para 29 that, the directions in Martin F.D'Souza case are not consistent with the law laid down by the larger bench in Jacob Mathew's case(Supra). The learned advocate of the opponent has also relied upon the judgment in Kishan Rao's case. The learned advocate of opponent has also relied upon Ramesh Chandra Agrawal -Vs- Regency Hospital Ltd. & ors. , Civil Appeal No.5991 of 2002 case where it is held that expert is not witness of fact. His evidence is of advisory character, the credibility of the evidence depends on reason stated in support of his conclusion. In the light of this judgment in Ramesh Agrawal's case we are inclined to discuss merits in the report of expert committee. After perusal of the said report it reveals that it is not concluding pointing towards negligence of opponent. The complainant was also having 26 A/67/2018 the problem of RPE atrophy apart from cataract problem is not considered by the expert committee.
32) The ratio of the judgments cited by advocate of the opponent state that, it is to be proved specifically the absence skill, or care not taken in cases of medical negligence. Merely from treatment it cannot be inferred whether operation was successful or that it is the case for medical negligence. Therefore we are not inclined to accept the medical negligence is proved. It is already discussed that, the expert report also not helpful to prove negligence on the part of opponent.
33) The learned advocate of the complainant objected submission of documents of cataract operation by the opponent at the stage of appeal. However , we have relied upon these documents in the interest justice.
34) In view of the aforesaid discussion, we are of the opinion that the opponent doctor did not impart deficiency in the service for the complainant.
35) The District Forum has allowed the complaint and directed opponent doctor to pay Rs.80,000/- towards expenditure of operation and Rs.5000/- mental agony and Rs.3000/- for cost of litigation. It appears that the alleged operation is dated 06.03.2014 and the complaint is filed on 27.06.2016 apparently beyond the stipulated period of 2 years of limitation. The opponent has already raised the objection on point of limitation in his 27 A/67/2018 written version. It appears that the District Forum did not consider the aspect of limitation while deciding the complaint.
36) It appears that the District Forum relied upon the expert report forwarded by the civil surgeon Parbhani. The District Forum has relied upon the observations of expert committee to arrive to their decision which is not concluding pointing toward negligence of opponent. It appears that the District Forum did not appreciate that the complainant was also having the problem of RPE atrophy apart from cataract problem. Therefore, we do not agree with the observations and impugned order of the district forum. Therefore there requires intervention in the impugned order of the District Forum. In the circumstances we pass following order.
ORDER
1. Appeal No.67/2018 is allowed.
2. The order of District Consumer Forum, Hingoli in consumer complaint No. 74/2016 is quashed and set aside.
3. The consumer complaint No.74/2016 before the District Consumer Forum, Hingoli is dismissed.
4. No order as to costs.
Sd/- Sd/- Mr.K.M.Lawande Smt.S.T.Barne, Member Presiding Judicial Member MBM