1. THIS appeal is filed by the opposite party Marble City Hospital and Research Centre, Jabalpur and two others against the order dated 26.4.2002 passed in Case No. 319/1998 by the District Consumer Disputes Redressal Forum, Jabalpur (for short the ''District Forum'').
2. FACTS of the case in brief are that the respondent/complainant V.R. Soni had developed cataract and, therefore, contacted Dr. Smt. Shikha Dubey who is an Eye Surgeon and is attached with the appellant hospital. The respondent approached Dr. Smt. Shikha Dubey in the hospital on 16.7.1998 and after examination he was admitted in the hospital for operation. He was operated on 17.7.1998 and was discharged on 18.7.1998. It is alleged by the respondent that after cataract operation, Intra-ocular lens (IOL) was also implanted. It is alleged by the respondent that after removal of cataract and implantation of IOL, he remained in the treatment of the operating surgeon Dr. Smt. Shikha Dubey upto 12.8.1998 and when there was no improvement in his vision, he consulted Dr. R.K. Mishra who is retired as Head of the Department of Ophthalmology, Medical College, Jabalpur. Dr. Mishra gave opinion that the case was of Pseudophakia and he will need corneal grafting if conservative line of treatment fails. The respondent/complainant was, therefore, referred to Nagpur where Dr. Prashant Agnihotri gave opinion that the patient has developed Pseudophakia Keratopathy and suggested conservative line of treatment for a month and confirmed the same treatment. The appellant Doctor, therefore, after conservative treatment referred the respondent to Delhi where corneal grafting was done. After this corneal grafting, the respondent regained his vision. The complainant/respondent approached the District Forum alleging medical negligence in performing the cataract operation and implantation of IOL and demanded a compensation of Rs. 3,50,000/-. The District Forum after appreciation of evidence gave finding that the appellant Dr. Smt. Shikha Dubey has committed medical negligence in performing cataract operation and fixing of IOL and, therefore, awarded a total compensation of Rs. 50,000/- and Rs. 2,000/- as costs of the proceedings total Rs. 52,000/- with interest thereon at the rate of 8% p.a. It is against this order, the appellants have preferred this appeal.
In their appeal, the appellants have submitted that there has not been any medical negligence on their part. They have submitted that the respondent was clearly told that he has a "Corneal Opacity" in his right eye and, therefore, he should go to Nagpur or Delhi for cataract operation but because son of the respondent was serving as ward-boy in the hospital of the appellant Mangal Nursing Home, therefore, the respondent and his son requested the appellant to get his eye operated at the Mangal Nursing Home itself. The appellant specifically told that due to corneal opacity in his right eye there are chances of failure or developing some complications. The respondent agreed to bear with the consequences and gave consent for getting the cataract operation by the appellant. The appellants have further submitted that the operation was successfully done and intra-ocular lens was implanted. It was due to corneal opacity that the respondent could not regain his vision. The development of Pseudophakia Keratopathy is a known complication in such case and Doctor cannot be held negligent in such natural happenings. The District Forum has not considered this aspect and has erroneously held the appellant responsible for medical negligence, therefore, the order of the District Forum should be set aside.
We have gone through the complaint, reply, documents, and evidence adduced by both the parties. The complainant/responded has only filed his affidavit along with papers of hospital treatment. There is no other affidavit or any other expert opinion in evidence which may support the case of the complainant. A bare perusal of the admission and discharge ticket issued by the appellant hospital which has been filed by the complainant reveals the fact that the complainant/respondent approached the appellant Dr. Smt. Shikha Dubey on 16.7.1998 where after examination he was admitted for operation. The diagnosis mentions that "Almost matured cataract with corneal opacity in right eye." The brief history says that there was complete loss of vision for one year. The findings which have been recorded at the time of admission clearly mention that there was "Brown cataract pigment dispersed on lens" and the diagnosis also mentions "Corneal Opacity". The record shows that the cataract was removed on 17.7.1998 and IOL was implanted. The record mentions that visual prognosis was explained to the patient. This means that due to corneal opacity the chances of complications were explained to the complainant. The patient was discharged on 18.7.1998 and medicines were prescribed for a week and the patient was called back on 21.7.1998 for review. This makes clear that the respondent was having corneal opacity and, therefore, there were chances of developing complications. The appellant has submitted that she looked after the patient and gave conservative line of treatment but when there was no improvement in the vision, she advised the respondent/complainant to take advice of Dr. R.K. Mishra who is a retired Head of the Department of Ophthalmology, Medical College, Jabalpur. Dr. Mishra gave opinion that the case has developed as Pseudophakia, Bullous Keratopathy, therefore, grafting of cornea was necessary, if conservative line of treatment does not show any improvement. She, therefore, contained conservative line of treatment and on 28.8.1998 referred for further check-up to Institute of Clinical Ophthalmology, Nagpur where Dr. Prashant Agnihotri diagnosed Pseudophakia Keratopathy on 17.9.1998. Dr. Agnihotri vide letter dated 17.9.1998 suggested conservative treatment for a month, thereafter penetrating Keratopathy should be done. The advice thus followed by the respondent and when there was no improvement, then on 18.10.1998, the respondent/complainant was referred to Rajendra Prasad Eye Centre and Cornea Clinic of All India Medical Institute of New Delhi where the Keratoplasty i.e. the grafting of cornea was done which resulted in the improvement of vision of the respondent. The efforts made by the appellant Doctor make clear that she was vigilant from very beginning and the respondent was specifically told the complications due to corneal opacity and when the complications developed she tried to treat and cure and referred the respondent/complainant to higher centres. It is due to constant watching and keeping the patient under treatment that the respondent was cured and regained his vision. We, therefore, find that the conduct of the appellant Doctor shows that she had taken all care and precautions while performing the operation of cataract and implantation of IOL and, therefore, she cannot be alleged to have committed any medical negligence.
3. THE instant case is a case of a known complication. THE appellant had explained before hand, the complications which may occur because the respondent was having corneal opacity. THE medical literature produced before us also makes clear that Pseudophakic Bullous Keratopathy is currently most common complication. It is associated most frequently with previous implantation of an Iris-fixation IOL. It further says that pre-existing Endothelial Dystrophy is a factor that pre-disposes to early decompensation (See Page 302 of Kanski Clinical Ophthalmology Third Edition).
As has been submitted by the appellant, the respondent was a case of corneal opacity and, therefore, complication of pseudophakia Keratopathy developed which was diagnosed properly. The patient was referred by the appellant to a higher centre. In such circumstances, we cannot fasten the allegation of medical negligence on the appellant.
4. THE respondent/complainant has not produced any expert medical opinion that there has been any negligence on the part of the appellant Doctor in performing the said operation. THE burden of proving negligence rests upon the person who asserts it. In medical negligence cases, it is for the patient to establish his case against the medical man and not for the medical man to prove that he acted with sufficient care and skill. See, the decision of Madhya Pradesh High Court in case of Smt. Sudha Gupta & Ors. v. State of M.P. & Ors., 1999 (2) MPLJ 259.
The National Commission has also taken the same view observing that mishap during operation cannot be said to be deficiency or negligence in medical services. Negligence has to be established and cannot be presumed. See, the decision of the National Commission in case of Kanhiya Kumar Singh v. Park Medicare and Research Centre, III (1999) CPJ 9 (NC)=(2000) NCJ 12 (NC). Similar view has been taken by the (MRTP) Commission in case of P.K. Pandey v. Suraj Nursing Home, II (1999) CPJ 65 (MRTP)=(2000) NCJ 268 (MRTP). Followed by this Commission in Vaqar Mohammed Khan & Anr. v. Dr. S.K. Tandon, II (2002) CPJ 169.
We, therefore, find that the respondent/complainant has not proved the negligence against the appellant Doctor. We, therefore, are of the opinion that the District Forum has not correctly appreciated the evidence and held the appellant Doctor negligent in medical services merely on the basis of surmises and conjectures. We, therefore, are of the opinion that the order of the District Forum is erroneous and cannot be sustained.
5. IN the result, the appeal is allowed and the order of the District Forum is set aside, consequently the complaint is dismissed. Parties to bear their own costs throughout. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with the record of the case. Appeal allowed.
