State Consumer Disputes Redressal Commission
Smt. Mahindra Devi Ostwal vs Dr. Sandeep Kothari & Anr. on 7 April, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/13/05
Instituted on : 01.04.2013
Smt. Mahindra Devi Ostwal,
W/o Jethmal Ostwal,
R/o : Oswal Line,
Rajnandgaon (C.G.)
Through : Power of Attorney Holder & Son
Shri Gyanchand Ostwal, S/o Shri Jethmal Ostwal,
R/o : Oswal Line, Rajnandgaon (C.G.). ... Complainant.
Vs.
1. Dr. Sandeep Kothari,
United Hospital Campus,
Old Bus Stand,
Rajnandgaon (C.G.)
2. National Insurance Company Limited,
Through Branch Manager,
Branch Office - Kamthi Line,
Rajnandgaon (C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES:
Shri R.K. Bhawnani, for the complainant.
Shri J.N. Shukla, for the O.P.No.1.
Shri Ishwar Lal Sahu, for the O.P.No.2.
ORDER
Dated : 07/04/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs has been filed by Shri Gyanchand Ostwal, Power // 2 // of Attorney Holder and Son of Smt. Mahindra Devi Ostwal, seeking following relief(s) as under :-
(a) To direct the OPs to pay a sum of Rs.25,00,000/- to the complainant towards compensation.
(b) To direct the OPs to pay a sum of Rs.10,00,000/- towards compensation for deficiency in service, unfair trade practice, for mental agony.
(c) That the Hon'ble Commission may kind enough to order any other relief as deemed fit from the facts of the case.
2. The brief facts of the complaint are that : on 20.07.2012 Smt. Mahindra Devi Ostwal had gone to O.P.No.1 for treatment of her eye and she was suffering from cataract. On 20.07.2012 O.P.No.1 conducted operation of right eye of Smt. Mahindra Devi Ostwal. She was again called on 21.07.2012. In the evening of 20.07.2012, Smt. Mahindra Devi Ostwal suffered from pain and etching in her right eye. On 21.07.2012, Smt. Mahindra Devi Ostwal came to O.P.No.1 and after examination of her right eye, O.P.No.1 told her that her operation was successful and vision of her right eye was good. Even after opening bandage, Smt. Mahindra Devi Ostwal was having problem of redness, pain and etching in her right eye. The O.P.No.1 told Smt. Mahindra Devi Ostwal that above problem will be cured by medicine. Smt. Mahindra Devi Ostwal, followed the instructions given by O.P.No.1. On 31.07.2012 Smt. Mahindra Devi Ostwal had gone to O.P.No.1 and // 3 // after examination O.P.No.1 told that the condition of her right eye was good and instructed her to continue the medicine and directed her to again come on 07.08.2012. On being informed by Smt. Mahindra Devi Ostwal that she was having problem of redness in right eye and etching, then the O.P.No.1 instructed her to continue the medicines. On 07.08.2012, Smt. Mahindra Devi Ostwal again came to O.P.No.1 and after checking her eye, the O.P.No.1 told that lens is not in correct position and again operation was conducted by the O.P.No.1, but the problem was still remain. The O.P.No.1 advised Smt. Mahindra Devi Ostwal to take expert opinion from Senior Eye Specialist Dr. Anand Saxena at Raipur. Smt. Mahindra Devi Ostwal came to Raipur and contacted with Dr. Anand Saxena on 07.08.2012 and he gave medicines and again called Smt. Mahindra Devi Ostwal after two days. On 10.08.2012, Smt. Mahindra Devi Ostwal again came to Dr. Anand Saxena. Dr. Prashant Bawankule, who was working in hospital of Dr. Anand Saxena, informed Smt. Mahindra Devi Ostwal that her eye was damaged and there is little chance to save her eye and she was advised to go to Sankara Nethralaya, Chennai for better treatment. Smt. Mahindra Devi Ostwal had gone to Sankara Nethralaya, Chennai for better treatment, where doctors examine her eye and on examination, best corrected visual acuity in the right eye was perception of light with projection of rays and in the left eye was finger counting at three meters. The left eye showed an adherent leucoma. The operation was // 4 // conducted on 11.08.2012. The patient was taken up for repeat surgery on 22.08.2012. Due to negligent act of O.P.No.1, Smt. Mahindra Devi Ostwal lost her vision of right eye and she was required to incur near about Rs.5,00,000/- in her treatment, therefore, Smt. Mahindra Devi Ostwal, is entitled to get compensation from the OPs as mentioned in the relief clause of the complaint.
3. The O.P.No.1 filed his written statement and averred that the complainant is not competent to file the instant complaint. Shri Gyanchand Ostwal is not authorized to file the present complaint, therefore, the complaint is liable to be dismissed. O.P.No.1 further averred that on 25.02.2012 for the first the Smt. Mahindra Devi Ostwal came to O.P.No.1 and he examined eye of Smt. Mahindra Devi Oswtwal and found that cataract of eye had increased and immediate operation was required and he advised Smt. Mahindra Devi Ostwal for operation, but Mahindra Devi Ostwal did not came for operation and she came on 29.06.2012 at that time he against told her that cataract of eye was increased and immediate operation is necessary. Then, she came to O.P.No.1 on 18.07.2012 and he again advised for operation of the eye, but she did not give any response. On 20.07.2012 Smt. Mahindra Devi Ostwal was taken for operation and operation was conducted by O.P.No.1. On 21.07.2012, Smt. Mahindra Devi Ostwal came to O.P.No.1 and bandage was removed, at that time vision of her right eye was 6/6P and her vision of her eye was more than 95% and // 5 // condition of her eye was good. She was advised to bear black goggle continuously for one month and O.P.No.1 also instructed her to take eye drop continuously. Smt. Mahindra Devi Ostwal never complaint regarding pain, redness and etching in her right eye. On 31.07.2012, the O.P.No.1 again examined her right eye and found that her vision was good. Smt. Mahindra Devi Ostwal, came to O.P.No.1 on 07.08.2012 she complained that she lost her vision since morning and on examination it was found that some injury was caused in her eye and lens of cornea was adherent. Smt. Madhindra Devi Ostwal admitted regarding injury of eye. On being seen the injury on right eye, the O.P.No.1 advised Smt. Mahindra Devi Ostwal to contact Senior eye expert Dr. Anand Saxena at Raipur. O.P.No.1 never committed any deficiency in services and medical negligence. The complaint is frivolous and has been filed maliciously. The complainant is not entitled to get any compensation form the O.P.No.1.
4. The O.P.No.2 filed its written statement and denied the allegations made against it in the complaint. Dr. Sandeep Kothari is insured with the O.P.No.2 and at the time of incident, O.P.No.1 was insured with O.P.No.2. The complainant is not a consumer of O.P.No.2, therefore, the complaint is not maintainable against O.P.No.2 and the same is liable to be dismissed.
// 6 //
5. The complainant has filed document. A-1 is Discharge Card of Mahaveer Eye Care Hospital, Rajnandgaon, A-2 is prescription slip dated 28.07.2012 of Mahaveer Eye Care Hospital, A-3 is prescription slip dated 07.08.2012 of Mahaveer Eye Care Hospital, A-4 is prescription slip dated 10.08.2012 of Aurobindo Nethralaya, Raipur, A- 5 is Inpatient Discharge Bill of Sankara Nethralaya, Chennai, A-6 is bills issued by Sankara Nethralaya, Chennai, A-7 is Case Sumary of Sankara Nethralaya, Chennai, A-8 is Clinical Ocular Pathology Lab Report, A-9 is treatment slips, A-10 is Clinical Microbiology Lab Report, A-11 is Drug Bill of Sankara Nethralaya, A-12 is report of Sankara Nethralaya, A-13 is letter dated 27.11.2012 sent by the Gyanchand Ostwal to O.P.No.1, A-14 is letter dated 02.12.2012 sent by O.P.No.1 to Shri Gyanchand Ostwal.
6. The O.P.No.1 has also filed documents. Documents are insurance policy, treatment slip dated 20.07.2012, treatment slips dated 28.07.2012, 31.07.2012. 07.08.2012 and 09.08.2012, report of sugar test.
7. The O.P.No.2 has also filed documents. Annexure D-2/1 is insurance policy, Annexure D-2/2 is terms and conditions of the policy.
8. Shri R.K. Bhawnani, learned counsel appearing for the complainant has argued that Smt. Mahindra Devi Ostwal had suffered loss of vision of her eye due to negligence of the O.P.No.1. Infection in her eye was occurred due to negligent act of the O.P.No.1, therefore, // 7 // Smt. Mahindra Devi Ostwal came to Raipur and contacted Dr. Anand Saxena who referred her to Sankara Nethralaya, Chennai where operation was conducted on her right eye twice. On the basis of case summary of Sankara Nethralaya, Chennai it appears that infection was present in the right eye of Smt. Mahindra Devi Ostwal and swelling was also present and loss of vision was also there. The above information was occurred due to negligence of the O.P.No.1 and Smt. Mahindra Devi Ostwal suffered loss of vision of her right eye, therefore, she is entitled to get compensation from the O.P.No.1, which is mentioned in the relief clause of the complaint. He place reliance on judgment of Hon'ble Supreme Court in A.U. Sukumaran vs. N.S.D. Raju and Ors., 2014 (4) CPR 300 (SC) and V. Kishan Rao vs. Nikhil Super Speciality Hospital & Anr. III (2010) CPJ 1 (SC).
9. Shri J.N. Shukla, learned counsel appearing for the O.P.No.1 has argued that O.P.No.1 conducted the operation properly and there is no medical negligence on the part of O.P.No.1. Dr. Anand Saxena did not give any adverse opinion against the operation conducted by the O.P.No.1. Even in case summary of Sankara Nethralya, Chennai it is not mentioned that problem occurred in right eye of Smt. Mahindra Devi Ostwal is due to wrong operation conducted by O.P.No.1. The O.P.No.1 did not filed any expert opinion. The report of Dr. Anand Saxena is material evidence but the complainant did not file any report regarding loss of vision of her right eye or regarding any infection // 8 // occurred in right eye of Smt. Mahindra Devi Ostwal, due to conducting operation negligently. The complainant has not been able to prove that O.P.No.1 has committed any medical negligence, therefore, the complaint is liable to be dismissed. He placed reliance on judgments of Hon'ble National Commission in A.K. Gupta (Dr.) & Anr. Vs. Mahipal, 2008 NCJ 167 (NC); Raj Kumar Gupta & Ors. Vs. P.S. Hardia (Dr) & Anr. 2007 NCJ 692 (NC); and Santosh Gupta & Ors. Vs. G.G. Dhir (Dr.) & Ors., 2008 NCJ 68 (NC).
10. Shri Ishwar Lal Sahu, learned counsel appearing for the O.P.No.2 has supported the arguments advanced by counsel for the O.P.No.1.
11. We have heard learned counsel for both the parties and have also perused the documents filed by the parties in the case.
12. Now we shall examine whether the complaint filed by the Power of Attorney Holder of Smt. Mahindra Devi Ostwal, is legal and maintainable ?
13. Shri J.N. Shukla, learned counsel appearing for the O.P.No.1 has argued that complaint has been filed by Shri Gyanchand Ostwal, who is not competent to filed the complaint, therefore, the complaint is not maintainable. The above contention of the O.P. No.1 is not acceptable. Shri Gyanchand Ostwal, has filed Power of Attorney in which Smt. // 9 // Mahindra Devi Ostwal has authorized Shri Gyanchand Ostwal to file complaint before this Commission. There is no illegality in filing complaint by the Power of Attorney Holder on behalf of Smt. Mahindra Devi Ostwal. Shri Gyanchand Ostwal has been duly authorized by her, therefore, the complaint is maintainable.
14. Now we shall examine whether the O.P.No.1 has committed medical negligence ?
15. In the book titling "Medical Negligence" written by Shri S.P. Tyagi (Edition 2004) Reprint 2008, he has mentioned at Page No.64, 65, 66, 67 and 68 regarding Medical Negligence, Classification of medical negligence or mistakes. It runs thus :-
"What is Medical negligence The term medical negligence is nowhere defined in any Code or Act. No legislature, has so far, made any attempt to define it. Even the medico-legal jurists have not come forward to provide a specific meaning to this express.
'Medical negligence' is always an outcome of doctor patient inter se conduct and relationship, which lacks uniformity. The issue of medical negligence is a complicated one as medical professionals deal with human body. They do not deal with the machine. Human body is not a mere composition of bones and flesh. It is susceptieable to emotions also. Response of medicinal treatment varies from patient to patient. This phenomenon is also applicable to recovery aspect. Further recovery aspect is not solely dependent upon the appropriateness of treatment provided by the doctor. Response or recovery of a patient also depends on his individual anatomy and physiology. Possibility cannot be ruled out that a drug may be effective in case of one patient, it may not be effective in second and may cause reaction in third. Medico Legal experience also establishes that there exist inherent risk in every treatment, medicinal or surgical. Further possibility of // 10 // unforeseen mishap may not be ruled out. Even the medicinal literature provides for failure rates particularly in surgery.
The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be more than one course of treatment which may be advisable for treating a patient. Medical opinion may differ with regard to the course of action adopted by a doctor treating a patient.
Further the concept of medical negligence may be studied with reference to the extent of approach of a medical professional towards three under mentioned concepts, which generally work as guidelines to determine the factum of medical negligence or otherwise in a particular case.
(1) Duty of care in accepting the patient for treatment. (2) Duty of care in providing appropriate treatment. (3) Breach of duty or commission of negligence in any of them and damage cause by such breach.
In other words, medical negligence is result of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties. Broadly speaking medical negligence means negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in vogue, which are being practiced by an ordinary and reasonably competent man, practicing on the same branch of medicine or surgery.
Classification of medical negligence or mistakes. Negligence in medical care may broadly be classified into four categories :-
(1) Medical negligence at the level of doctors / paramedical staff / hospital authorities. Liability for negligence may be fixed at individual level and / or jointly or vicariously where hospitals nursing homes are involved.
(2) Negligence at the level of patient himself or his attendants also known as contributory negligence.
(3) Negligence at the level of manufacturers of drugs, equipment etc. and dispensers.
// 11 // (4) Composite negligence i.e. at more than one of the above 3 levels.
Negligence of first category may further be sub-classified into two categories viz.
(i) Individual liability of a medical professional.
(ii) Vicarious liability of an individual doctor or hospital for the Medical negligence may also be classified as under :
1. Medical mistakes.
2. Clinical negligence.
3. Surgical mistakes
4. Misplaced injection."
16. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good.
Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A // 12 // case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
// 13 // III. The medical professional expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
// 14 // VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation.
Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
17. In the instant case, the complainant filed his own affidavit., but the complainant did not file any affidavit of the patient Smt. Mahindra Devi Ostwal, whose operation was conducted by the O.P.No.1, therefore, Smt. Mahindra Devi Ostwal is a material witness for the complainant and her affidavit is essential for proper adjudication of the issues involved in the instant case. On the contrary, the O.P.No.1 has filed his own affidavit and in support of his case he also filed affidavit of Dr. Mohan Parakh. The complainant filed discharge card of // 15 // Mahaveer Eye Care Hospital of Dr. Sandeep Kothari O.P.No.1), situated at Old Bus Stand, Rajnandgaon (C.G.), which is marked as A-1. In the Discharge Card it is mentioned that Smt. Mahindra Devi Ostwal was admitted in the hospital on 20.07.2012 and she was discharged from the hospital on 21.07.2012. The O.P.No.1 admitted that he conducted cataract operation of right eye of Smt. Mahindra Devi Ostwal on 20.07.2012. Except Case Summary of Sankara Nethralaya, Chennai (A-7), no expert report was filed by the complainant to prove that due to conducting operation negligently by the O.P. No.1, Smt. Mahindra Devi Ostwal, suffered loss of vision in her right eye. In document A-7 it is mentioned thus :-
"CASE SUMMARY Ms. Mahindra Devi Ostwal (OUR MRD No. 2581996) a 50-year-old female came with complaints of pain, redness and diminution in the right eye since five days. Status post cataract surgery was done on 20.07.2012 in Chhattisgarh following which the patient was doing well till 05.08.2012. After which the patient complained of pain and redness was treated by local doctor.
On examination, best-corrected visual acuity in the right eye was perception of light with projection of rays and in the left eye was finger counting at three meters. The left eye showed an adherent leucoma. The rest anterior segment was within normal limits with an early cataractous changes. The fundus of the left eye was within normal limits. The right eye showed a total corneal ulcer limbus to limbus with early superior scleral swelling ? indicating scleral involvement of infection with almost 80 to 90% peripheral corneal thinning was present at 360o . The Finger tension was little on the higher side. No other anterior chamber details were visible. The posterior segment was not // 16 // visible. An ultrasound was done which showed both eyes comparable echoes and no evidences of endophthalmitis and no evidences of any T-signs. Perception of light was present. The corneal scrapping was done which showed plenty of fungal filaments. The patient was started on topical and systemic anti-fungals, cycloplegic and antibiotic. Patient was diagnosed to have fungal sclerokeratitis. The physician clearance was sought for therapeutic penetrating keratoplasty + intraocular lens explant with Vitreoretinal backup. The patient was clearly explained about guarded visual prognosis and chances of eye going into phthisis.
The patient was taken up for surgery on 11.08.2012. A large therapeutic graft with scleral patch graft superiorly was done with intraocular lens explants. Postoperatively the patient was started on topical and systemic anti-fungals and antibiotics and followed up closely. Fungus grew in corneal button. On day three, the patient shows early scleral necrosis superiorly. A repeat scraping was done which showed presence of fungal filaments in the superior scleral graft.
The patient was re-explained about the extreme guarded visual prognosis in the eye. The patient was taken up for repeat surgery on 22.08.2012 and a new scleral patch graft was done superiorly replacing the old graft. Postoperatively the patient monitored closely and was on topical and systemic anti-fungals. The infection was responding well. There was still a corneal defect which was not healing and so layer of amacrylate glue was put and bandage contact lens was placed. The patient was continued on topical and systemic anti-fungals. The patient was seen on 01.12.2012 and had perception of light. Since the eye was quiet and there was no evidence of infection, the patient was advised to decrease topical anti-fungals to six times a day and stop after two weeks and to continue with only Vigamox and Refresh Tear eyedrops three times a day and was asked to come back for a follow up after a month.
// 17 // The patient was seen here again on 19.11.2012. Best-corrected visual acuity in the right eye was perception of light and 6/24 in the left eye. The left eye finding was the same as seen on day one. The right eye was pre-phthisical. The glue was well adherent to the cornea. There was no evidence of infection. The patient was asked to continue with topical Vigamox and Refresh Tears eyedrops and come back for a review in six weeks for glue and bandage contact lens removal. Nil visual prognosis was explained to the patient for right eye."
18. From bare perusal of Case Summary of Sankara Nethralaya (A-7, it appears that the left eye showed an adherent leucoma. The rest anterior segment was within normal limits with an early cataractous changes. The fundus of the left eye showed a total corneal ulcer limbus to limbus with early superior sclera swelling ? indicating sclera involvement of infection with almost 80 to 90% peripheral corneal thinning was present at 360o..
19. According to the complainant, Smt. Mahindra Devi Ostwal had gone to Dr. Anand Saxena for further treatment of her eye and Dr. Anand Saxena examined her eye on 07.08.2012 & 10.08.2012. It appears that Dr. Anand Saxena referred Smt. Mahindra Devi Ostwal to Sankara Netralaya, Chennai for better treatment, but Dr. Anand Saxena did not give any opinion regarding loss of vision in her right eye. The complainant has not filed any expert opinion to show that due to operation conducted by the O.P.No.1, Smt. Mahindra Devi Ostwal, suffered any problem in her eye. On the contrary, the O.P.No.1 has specifically pleaded in written statement and stated in his affidavit that // 18 // on 21.07.2012, Smt. Mahindra Devi Ostwal, came to him and he examined her eye and found that some injury was present in her right eye and she was referred by him to Dr. Anand Saxena. In para 4 of his affidavit, O.P.No.1 has specifically stated that Dr. Anand Saxena has mentioned that No Decreased Vision as per Patient was found in right eye of Smt. Mahindra Devi Ostwal. Dr. Mohan Parakh who is an eye specialist also gave his affidavit in which he specifically stated that no mistake was committed by O.P.No.1 during conducting operation of right eye of Smt. Mahindra Devi Ostwal. He further stated that he perused the summary report of Sankara Nethralaya. According to summary report of Sankara Nethralaya it has been told that there is Fungal Corneal Ulcer, which is caused due to external reason and due to sustaining injury, Fungal Corneal Ulcer is occurred and it has no relation with operation.
20. From bare perusal of affidavit of Dr. Mohan Parakh, and Cash Summary report of Sankara Nethralya, Chennair, it appears that O.P.No.1 did not commit any medical negligence. If some problem was occurred in the right eye of Smt. Mahindra Devi Ostwal, then it can not be said that the said problem occurred due to negligence of OP.No.1.
21. On the basis of above discussions, we find that there is no negligence on the part of O.P.No.1 while conducting operation of right eye of Smt. Mahindra Devi Ostwal. The O.P.No.1 did not commit any // 19 // deficiency in service. The complainant has not been able to prove that O.P.No.1 has committed any deficiency in service while conducting operation of right eye of Smt. Mahindra Devi Ostwal. Therefore, the complainant, is not entitled to get any compensation from the OPs.
22. Therefore, the complaint of the complainant, is liable to be and is hereby dismissed. Parties shall bear their own cost.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar)
President Member Member
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