State Consumer Disputes Redressal Commission
Shri Andip Vinayak Aher vs Dr. Rukhmini Manohar Karad on 6 December, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI First Appeal No. 630/2008 Date of Filing: 30/04/2008 In Consumer Complaint No.:57/2007 District Consumer Forum: Nashik Date of Order: 06/12/2008 Shri Andip Vinayak Aher, Appellant(Org.Complainant) R/at- N-41, Af-1-6/8, Saibaba Nagar, CIDCO, Nashik. V/s. Dr. Rukhmini Manohar Karad, Respondent(Org.Opp.Party) R/at- Sharda Clinic, 29/30,Sathey Baug, M.G.Road, Nashik. Corum: Mr.P.N.Kashalkar, Honble Presiding Judicial Member.
Smt.S.P.Lale, Honble Judicial Member. Present:
Adv. V.G.Sabnis for appellant.
Dr.G.Shennoy/A.R. for respondent :-ORDER-:
Per Mr.P.N.Kashalkar, Honble Presiding Judicial Member:
This is an appeal filed by org.complainant, who is aggrieved by the fact that his consumer complaint against Dr.Smt.R.Karad had been dismissed by the District Forum, Nashik by its impugned judgement delivered in consumer complaint no. 57/2007 on 27/03/2008. Facts to the extent material may be stated as under:
The complainant had approached the opposite party Dr.Smt.R.Karad at Sharda Clinic, Sathey Baug at M.G.Raod at Nashik after seeing advertisement published in local T.V.Channel by Dr.Smt.R.Karad about excimer laser treatment. According to the complainant, he had approached Smt. R.Karad after reading advertisement, in her clinic. His number of right eye was -13 and that of the left eye was -12. He was told by the doctor that after conducting excimer laser treatment his number would be brought to zero and therefore, he opted for laser treatment being given by the opp.party. On 08/12/2004 as per advice given by opp.party doctor he had undergone the various tests. Thereafter, on 10/12/2004 opp.party conducted excimer laser operation on his eyes. Immediately, after the operation the eye sight of the complainant was reduced to a great extent but doctor assured him that within 4-5 months his eye sight would come to normal. After operation number of both the eyes got reduced to -5.00. Therefore, doctor suggested second operation and it was performed on 13/05/2005. Even after having second operation, he was not having proper eye sight and number, which was expected to go to zero became -6.00 But doctor assured him that in due process it would come down to zero. According to the complainant, because of operation he has got diminished eye sight and he is finding it difficult to do his day to day work. He is Advocate by profession and eye sight is very important for his profession and because of negligence of opp.party doctor his eye sight has been badly damaged and he had suffered tremendous damage and therefore, opp.party is squarely guilty of not rectifying the defects properly and he has been cheated by the opp.party doctor and therefore, he is required to suffer continued mental agony because of cheating. Therefore, he filed consumer complaint and claimed damages of Rs.4,50,000/- and Rs. 5,000/- as cost of proceedings.
Opp.party filed written statement and pleaded that she is expert Ophthalmologist of Nashik. She had given all details and information to the complainant before conducting operation on his two eyes. She had supplied broacher giving all details of laser treatment. He had read that broacher. She had never assured that his eye sight of both the eyes would be restored back to normalcy after operation. She had told him that she would try to reduce the number of both the eyes by operation she was performing on him. She had cautioned him that since the complainant had high eye number, it would not be wiped out completely but she would reduce it substantially by performing operation. She had suggested the complainant that he should install or implant contact lenses, but since that was very expensive, the complainant refused to opt for that protocol suggested by her and opted for excimer laser treatment and gave written consent to that effect. She as such performed two operations on the complainant and his number was reduced to -5.00. She asserted that because of operation conducted retina of both the eyes had not been damaged in any manner and complainant certainly would get benefit since his eye sight was reduced to -5.00. Therefore, she asserted that she was not guilty of any negligence in conducting two operations and in giving leaser treatment on both the eyes of the complainant. She therefore prayed that the complaint should be dismissed with cost.
On the basis of affidavits and documents, the Forum below in its order observed that the excimer laser treatment was employed to reduce the number of eye sight. In this process number of eyes is reduced to zero that is the object of conducting operation. But many a times number can be anywhere between zero and -+ 0.25 to -+ 0.5. Even after laser treatment given the number of the complainant had been reduced to -5.00. So, certainly after treatment the complainant got benefited by the operation. His eye sight number was reduced substantially though it was not totally brought down to zero. However, the complainant had not adduced any medical expert evidence to prove that while conducting the operation, opp.party doctor was guilty of medical negligence. Burden is on the complainant to prove that the opp.party doctor was guilty of medical negligence and medical negligence of the doctor has got to be proved by adducing expert evidence. No such expert evidence is adduced by the complainant. The Forum below noted in its order that the complainant had not adduced affidavit of any Ophthalmologist in support of his contention and his own affidavit alleging medical negligence on the part of Dr.Karad was not sufficient to hold that Dr. Karad was guilty of medial negligence. On the other hand, the Forum below mentioned in its order that the opp.party filed affidavit of Dr. Anup Shah, Nashik. His affidavit has revealed that because of laser treatment given eye sight number is not brought to zero, but it can be reduced and because of laser treatment neither retina nor main nerve of the eyes gets damaged. The complainant did not file any counter affidavit or expert opinion to the affidavit of opp.party. or that of the affidavit of Dr.Anup Shah and therefore, Forum below held that there was no medical negligence proved against Dr.Karad and therefore, it was pleased to dismiss the complaint. As such, the complainant has filed this appeal.
We heard submissions of Adv.V.G.Sabnis for appellant and Dr.G.Shennoy/A.R. for respondent.
We are finding that appellant had suffered high myopia. He had a number -13 in his right eye and -12 in the left eye. He was treated with laser surgery and he was told that one or two sitting would be required to bring down the number of his eyes. Before second sitting, the appellants number was -13 in the right eye -12 in the left eye. After second sitting the appellant was irregular in follow up. Respondent therefore, contended that she had done everything skillfully while conducting two operations of laser surgery on both the eyes of the appellant herein and eye sight of both the eyes sight was substantially reduced. There was no damage to cornia or on the ball nor any damage caused to the internal nerve of the eyes of the complainant. Respondents contentions is that if a person is having normal ailment of the eye, his eye sight can be rectified by following this laser surgery but appellants case was of high myopia. His number in left eye sight was -12 and in the right eye was -13. In such case, despite efforts made the eye sight could be reduced to -5 in respect of both the eyes. Such a case can not be brought down to zero because it was the case of high myopia.
Dr.Shennoy submitted before us that his client never gave guarantee that appellant would have zero number. Consent form in this respect would make this very clear. In the said at serial no.16, she has mentioned this fact in clear terms. It runs as under:
Excimer Laser treatment is for reducing spectacle numbers and removing corneal opacity. If there is visual diminission due to any other reasons, this cannot be corrected by Excimer Laser. Though every effort is made to make the patients number zero, += 0.5 refraction, for which spectacles are not required should be acceptable. If the final number is +- 1.0 or more, retreatment is given after adequate time, if the condition of the eye permits. At this time, nominal charge for materials and medicines used would be charges (Approx. Rs. 1,000/-) So, the patient was told that excimer laser treatment can be opted for getting reduced number of eye sight but it can not be brought to zero. It was also argued by Dr.Shennoy for the respondent that his client had never misled or cheated the appellant. The broacher given by his client to the complainant before operation is very clear in this behalf. Dr. Shennoy also submitted that he had filed on record Dr.Anup Shahs expert opinion and in the same he has clearly stated that the respondent had committed no error in giving treatment to the appellant herein. In para 2 of Dr.Anup Shah in his affidavit stated as under:
I say that despite any result in the laser treatment as mentioned above, it cannot so happen that due to laser treatment there can be any damage to retina or nerve of the eye. The said treatment works on the surface of the eye with no penetrating action and therefore it cannot cause damage to any inner part of the eye, such as retina or nerve. I say that the patients who are having considerably high number, they may not have 100 % result of the laser treatment..
Thus, in view of expert opinion tendered by the respondent and in view of fact that there is no medical expert evidence adduced before the Forum below, it rightly decided the complaint and it was pleased to dismiss the complaint. We are finding no substance in the appeal preferred in the appeal by the complaint.
It must be borne in mind that in medical negligence cases charges are leveled very lightly against the person in White Apron, but it is very difficult to prove the charge of medical negligence against the doctor, who is a Ophthalmologist. Medical negligence against the doctor has to be proved by expert opinion. Clinching evidence must be adduced to prove that doctor failed in his duty to take due and proper care and doctor gave treatment contrary to established protocol of a given stream. While deciding the cases of medical negligence courts are guided by Bolams Test reported in 1957 JWLR 582. If, the doctor is having two options to treat the patient and he opts to go by one procedure and he follows the procedure as per established medical science then even if one does not get full result of the procedure, he can not be said that he is guilty of medical negligence. If, it is established by any doctor that he had taken good amount of care of the patient in giving a particular treatment, he has done his job expectedly and correctly. Simply because that procedure fails that does not mean that doctor has exhibited lesser skill or he had not taken good and reasonable care of the patient. In the instant case, without there being any expert evidence adduced by the appellant, appellant can not point out accusing finger against Dr.Karad, who had given best of the treatment to her ability and to her standing. She had never assured 100% success in the operations and therefore, unless appellant pointed out how and to what extent respondent was guilty of lack of expert and lack of due and utmost care, he can not be heard to say that respondent was guilty of medical negligence and therefore, we are finding that in the absence of evidence no medical negligence can be attributed to the respondent herein, when she gave laser treatment to the appellant and brought down the number of eye sight of both the eyes substantially. Thus, she was not guilty of any medical negligence in the circumstance obtainable. In the result, we find no substance in the appeal preferred by the appellant. Hence, we pass following order:-
:-ORDER-:
1.
Appeal stands dismissed.
2. Parties are left to bear their costs.
3. Declared in open court.
4. Copies of the order herein be furnished to the parties.
(S.P.Lale) (P.N.Kashalkar) Member Presiding Judicial Member