3-51 OPHTHALMOLOGY

13-51.1 Charity eye camp-Post-operative eye infection-Irreversible eye dam- age of 84 patients-Public Interest Litigation under Art. 32 of the Constitution filed-On humanitarian grounds additional monetary relief granted-The matter of eye damage to 84 patients in a charity eye catnp was brought before the Supreme Court in the form of a Public Interest Litigation under Article 32 of the Constitution of India. During an "Eye Camp" organised on 21.4.1986 by the Lions Club at Khurja in UP; Dr. R.M. Sahay and his team of doctors performed cataract surgery on 88 persons and left for Moradabad the same evening to conduct similar operations at another "Eye Camp". Owing to a post-operative infection the operated eyes of 84 patients were irreversibly damaged. Despite all help their condition did not improve. The source of infection was' 'normal saline' used on the eye during surgery which was purchased by the doctor. It was alleged that the Government officers were guilty of serious breaches of duty in granting permission without ensuring a strict compliance with the Government Guidelines and not overseeing the satisfactory and safe functioning of the camp. The police registered a case under section 338 of the Indian Penal Code against the doctor which was pending disposal. It was contended by the petitioners that this wholly avoidable mishap was entirely the result of the composite negligence on the part of the surgical team and the authorities of the UP Government, who failed to ensure obedience to the norms. Also, as the "eye camp', was held pursuant to and on authority of the Government, it was vicariously liable. Due to the limited scope of the proceedings, the Supreme Court without expressing -its opinion on these points, on humanitarian considerations, directed the UP State Government to pay in addition to the sum ofRs.5,000/- already paid by way of interim relief, a sum of Rs.12,500/- to each of the victims. The Supreme Court also approved the revised guidelines dated 9.2.1988 which prescribed the norms and conditions for the conduct of"eye camps", with the suggested modifications. [A. S. Mittal and ors. v. State of UP and ors., AIR 1989 SC 1570: 1989 (3) SCC 223: 1989 (2) JT 419 (SC).]

13-51.2 Ophthalmology-Penetrating eye injury-Efforts to remove pellet from eye unsuccessful-Further attempt to remove the pellet not justified-No negligence- A school boy was hit by a pellet from a shot-gun in his right eye, leading to a penetrating injury .On being operated by an ophthalmologist it was found that since attempts to remove the pellet had failed and further attempts would instead cause greater harm to the injured eye, the wound was closed with sutures. The opposite party-doctor's version that there was no negligence was supported by standard text books and expert evidence. No negligence inferred. [Bhagbat Saran Agarwala & Ors. v. State of Orissa & Ors., 1993 (2) CPJ 1066 (Ori. SCDRC).]

13-51.3 Ophthalmology-Complications following eye surgery-Suppression of material facts by the complainant-No negligence-The case put forward by mother of the complainant was that she took her daughter Miss Gurpreet Kaur (Minor) to the clinic of the opposite party for treatment of some eye disease for the first time on 8.4.1989. Without performing the necessary and preliminary tests and without due and proper caution the doctor operated on the left eye of the child, and without proper examination, discharged the patient on the same day. The patient was subsequently taken to his clinic for check-up every morning and evening between 10.4.1989 to 13.4.1989. On 14.4.1989 she was asked to take her to another doctor who demanded Rs. 10,000/- for another operation on the eye, and also stated that he would not take responsibility for the complete cure of the eye. Thereafter the complainant again called on Dr. Bhutani who informed her that he could do nothing further in the matter. Disgusted, she took the child to St. Stephen's Hospital where the doctors told her that in case inlmediate removal of the left eye was not done the child could die. Accordingly, the child' s left eye was removed. Keeping in view the permanent loss of the left eye and the physical, mental and, social repercussions it had on her future, the complainant prayed for compensation to the tune of Rs. 5 lac. In his written reply, Dr. R.K. Bhutani stated that: .Child was initially brought to him on 6.3.1989 and not on 8.4.1989 as alleged in the complaint. On 6.3.1989 itself he had explained to the mother of the patient, the serious nature of the problem and the left eye was already damaged extremely due to a previous surgery .It was only then that it was disclosed to her that left eye of the child had earlier been operated upon at the Dr. Rajendra Prasad Centre for Ophthalmic Sciences, AIIMS, New Delhi when the child was only ten months old.

.He got all necessary tests of blood, urine etc. conducted before operating upon the child. After surgery , child was kept under observation for twelve hours and discharged only after complete and thorough examinations.

.Subsequently, follow-up treatment was given from 10.4.89 onwards. Held: The appeal was dismissed with costs fixed at Rs. 7,500/- on the following grounds: .The complainant had suppressed in her complaint the crucial fact that the child had

been operated upon when she was only 10 months old. T1lis was verified through relevant records and examination of the then concerned specialist.

Except for filing her own affidavit the complainant has not adduced any expert evidence on her behalf. Reports of preoperative tests falsify her allegations that they were not performed. [ Miss Gurpreet Kaur(Minor) v. Dr. R.K. Bhutani, 1993 (3) CPl 355: 1993 (3) CPR 409 (NCDRC).]

13-51.4 Ophthalmology-Cataract operation-IOL implant-Loss of vision- Complainant not careful in follow-up treatment-Contributory negligence-In the instant case, it was claimed that the complainant had cataract in her right eye for which she consulted Dr. Chudawat who operated her cataract and implanted an intra-ocular lens on 24.10.94, However, the vision did not return even after 6 months. Dr. Chudawat advised for getting a more costly intra-ocular implant guaranteeing that her vision would become normal. Re-implant was done and separate fees recovered for the same. However, vision still did not improve. Thereafter on advice of other doctors her eye was again operated on 7.1.1992 in another hospital and the lens was removed, she had lost sight of her right eye. Dr .Chudawat denied that a guarantee was given regarding return of vision. The possible pros and cons of the operation were explained to her. As the implant did not suit the complainant another lens was implanted by another operation. Thereafter the complainant did not come for follow-up treatment. The State Commission held that: .the cataract was operated on 24.10.1990; .the complainant did not complain of any pain or trouble for 5 months; .the complainant agreed to undergo the second operation from the same doctor; had there been any negligence during the first operation the patient would not have got the second operation done from the same doctor; from the procedure followed by the doctor, it cannot be inferred that there was any want of care or skill on the part of Dr, Chudawat; from the available records it seems that the complainant herself was negligent in taking follow-up treatment;  just because she had lost vision of her eye, it would not mean that it was due to the negligence of the doctor. Hence, the complaint was dismissed. [ Rohini Devi v. Dr. H:S. Chudawat & Anr. , 1995 (I) CPl 334: 1994 (3) CPR 621 (Raj. SCDRC).]

13-51.5 Ophthalmology-Lack of proper pre-operative assessment-Patient died-Negligence held-Compensation of Rs. 21ac and treatment expenses of Rs. 20,000 awarded-In the instant case, the wife of the complainant died due to heart attack shortly after cataract surgery. It was alleged that she died due to excessive anaesthesia, improper care and negligence of Dr. M.R. lain and his hired staff. In this regard the following averments were made: Dr. M.R. lain administered medicines without taking allergy-test; .operation was conducted without pre-anaesthetic check-up; .no physician was consulted before the operation; no ECG was conducted before operation though it was in the knowledge of Dr. M.R. lain that the patient was receiving treatment for blood pressure; the post-mortem was deliberately avoided by Dr. M.R. lain.

Compensation of Rs. 9,90,000/- was claimed. In the counter, on behalf of Dr. M.R. lain it was stated that: the Nursing home where the operation was performed was hired directly by the complainant; first surgery conducted earlier on left eye for glaucoma was uneventful and successful; .as the patient showed allergic reaction to local anaesthesia, cataract surgery was done under general anaesthesia; .the patient was advised to get pre-anaesthetic evaluation done and also to get examined from the anaesthetist before the operation the anaesthetist was not hired/paid by Dr. M. R. lain, as alleged, death was due to excessive anaesthesia, hence the concerned anaesthetists should be directly liable, complaint should have been filed against the anaesthetist who was engaged by the complainant himself, liability in respect of the alleged negligence of anaesthetist cannot be that of the surgeon. The State Commission held that: the patient showed allergy to anaesthesia and had high blood pressure for which she was taking treatment; despite this no proper pre-operative screening was done in form of ECG, chest X -ray, blood sugar, urine, etc.; there was no evidence to prove that the patient was advised to pre-anaesthetic evaluation done from a physician;

.there was no evidence to prove that the complainant was advised to have the patient examined from the anaesthetist before the operation; the anaesthetist was engaged by Dr. M.R. lain himself; the rule known as respondent superior which holds the principal responsible for the acts of his agents was quoted; this doctrine is manifested in the operation room in the form of so-called ' , Captain of the ship" doctrine. On these grounds Dr. M.R. jain was held to be falling below the standard of a reasonably skilled medical-man measured by the standard of what is reasonably expected from the ordinary competent practitioner in his class.

Awarded: Rs. 2 lac as compensation for loss of consortium and Rs. 20,000/- as expenses of treatInent. [M.P. Agarwal v. Dr. M.R. Jain, Complaint No.125 of 1993 decided on 9.1.1996 by Raj. SCDRC (unreported).]

13-51.6 Ophthalmology-Eye washing-Carbolic acid dropped in the eye resulting in loss ofvision-Negligence held-Compensation of Rs. 11ac and cost Rs. 15,000 awarded against the doctor and the hospital-In the instant case, the com- plaint was that while treating marginal ulcer of the left eye by eye washing, some acid (carbolic acid) was dropped in the eye by mistake resulting in damage to cornea and loss of vision of left eye. The Commission awarded Rs. 1,00,000/- as damages and Rs. 15,000/- as costs to be borne jointly by the doctor and the hospital where the doctor was employed. [K. Kuttapan v. Benigar Hospital& Ors., 1996 (1) CPR462 (Ker. SCDRC)] 13-51.7 Ophthalmology-Operation for glaucoma-Negligence alleged and treatment taken elsewhere-Held no negligence on ground of contributory negligence- The complainant was operated for glaucoma right eye. It was alleged that the operation was performed negligently due to which she had to take treatment elsewhere for relief.

The State Commission dismissed the complaint on the basis of: .the report of L. V. Prasad Eye Institute, Hyderabad, which was filed by the petitioner (complainant) in support of allegatioos. on the contrary, supported the OP No.1; and the fact that the complainant rather did not take due care to have the follow up treatment through opposite party No.1 (contributory negligence).

[Maya Bagchi v. Dr. Samir Sen Gupta & Anr., 1996 (2) CPR 180 (WB SCDRC).]

13-51.8 Ophthalmology-Negligence in refraction-Refund of charges awarded-The complainant got her eye examined with G.K.B. Optics who prescribed for spectacles which were of higher power and resulted in headache. This had to be corrected by another specialist. District Forum directed refund of cost of spectacles Iwhich was upheld by the State Commission. [G.K.B. Optics & Ors. v. Mrs. Nina Roy, 1996 (2) CPJ 135 (WB SCDRC).]

13-51.9 Ophthalmology-Operation for glaucoma-Loss of eye-sight-No negligence-The complainant was operated for malignant glaucoma, but her eye-sight did not improve. It was alleged that this occurred due to the negligent manner in which the operation was performed and lack of post-operative care. After considering all material on record the State Commission held that the complain- ant failed to discharge the heavy onus of establishing negligence or deficiency and failed to examine any other specialist who subsequently treated her. The fact that the doctor refunded the expenses by means a cheque, is a circumstance which itself does not go " 1 against him. Complaint dismissed. [AshaRani v. Dr. Rohit Grover& Ors., 1996 (3) CPJ ) 259 (Chd.-UTCDRC).] ,

13-51.10 Ophthalmology-Cataract operation-Loss of vision-N o negligence-The complainant's son aged 6 years was operated for post traumatic cataract with secondary infection but he lost his vision in that eye:;. The complaint came to be , dismissed as no convincing material evidence was placed before the State Commission. [ [RameshBhai P. Prajapati & Anr. v. Dr. P.N .Nagpal, 1997(1)CPJ 471 (Guj. SCDRC).]

13-51.11 Ophthalmology-Cataract operation-IOL implant-N o negligence-The complainant was operated upon for cataract and intra-ocular lens (IOL) implant, but there was no restoration of vision in that eye. The Opposite Party submitted that: "', the complainant was apprised of all surgical options and advantages and risks therein, !fii" on which he deliberated for over a fortnight and signed a consent form to have IOL . implanted and accepted responsibility for all the benefits and ill-effects;

.any allergy that may develop following reaction to such imbalance can be countered by drugs, and the patient was already responding to such a course, he voluntarily discontinued treatment. The National Commission concurred with the conclusion arrived at by the State Commission that the complainant had failed to discharge the burden of proving negligence of the Opposite Party and dismissed the complaint. [Kailash Kumar Sharma v. Dr. Hari Charan Mathur, 1997 (3) CPJ 41 : 1997 (2) CPR 126 (NCDRC).]

13-51.12 Ophthalmology-Defective drug-Irrisol drops causing blindness to number of patients-Manufacturer held negligent- [Drug/Equipment Manufac- " turer/Chemist, ante. Jag deep Mohanlal Kakadia v. Ophthalmics and Drugs India Ltd. , 1997 (3) CPR 229 (Guj. SCDRC).]

13-51.13 Ophthalmology-Lack of proper pre-operative assessment-Negligence held-Total compensation under various heads: Rs. 5.051ac and treatment , expenses Rs. 50,000 allowed-The complainant, a practising lawyer got his right eye operated for cataract, but he developed complications and lost vision of his right eye. Ophthalmologist was held grossly negligent for not checking his vision and lOP (Intra-Ocular Pressure) before surgery. The basis of the quantum of compensation awarded is being reproduced for the benefit of the readers to understand how these calculations are made: a sum of Rs. 2 lac as compensation for loss of eye- sight in the R.E. rendering the complainant disabled to the extent of 30%;

.the complainant, on affidavit had stated that before loss of eye-sight in the right eye he was an Income- Tax assesse which after the operation he was not. He was not in a position to strain only the left eye and his professional income had gone down considerably; this had not been denied by the appellant; assuming monthly loss of Rs. 1,500/- against his claim of Rs. 2,000/- per month he would suffer a loss of Rs. 1,80,000/- in ten years of active life; a sum of Rs. 1,80,000/- was allowed on this account as a fair recompense for loss of profit of his profession;

.although detailed vouchers in support of Rs. 1,00,000/- as per revised claim for expenditure on account of treatment at various places had not been furnished a sum ofRs. 50,000/- was considered reasonable to meet the cost on account of travel, stay, treatment and medicines; a sum of Rs. 25,000/- on account of mental agony suffered by the complainant was allowed; the complainant maintained a car and with the disability that he had, he himself could not drive the same or move on foot unattended; he necessarily had to engage a ilriver or an attendant for which he rightly deserved to be compensated. A sum ofRs. 1 lac was allowed on this count. [K.N. Lal v. Dr. R.K. Akhaury, 1997 (3) CPJ 112 (Eih. SCDRC).]

13-51.14  Ophthalmology-Cataract operation-No negligence-The complainant was operated for cataract. Subsequently, he developed complications and his eye ball had to be removed at another medical centre. The State Commission dismissed the case on grounds of: the decision of the doctor to operate for cataract had not been challenged; .the operation was done with reasonable care any after-effect subsequently noticed could be either due to lack of proper care dr due to other reasons;

.the allegation that wrong medicines were prescribed has not been testified by expert; and production of copies from medical books is not enough to prove an allegation of negligence in such a case. [Bhupendra Nath Das v. Maharaj Ram Krishna Mission Seva Pratisthan & Ors., 1998 (1) CPJ 377: 1998 (2) CPJ 390 (WE SCDRC).]

13-51.15 Ophthalmology-Eye injury-Removal of eye-Proper care and treatment given-No negligence-The complainant (represented by his father) was a boarder and injured his right eye due to a fire accident and was taken to a hospital where the whole right eye was removed. It was alleged that the parents were not informed and the operation was done negligently in a hospital, which did not have adequate facilities.

The State Commission held that as the doctor told the School authorities that immediately an operation had to be done and thereafter per force they had to give their consent for the same, as parents were staying 140 kms. away and waiting for their arrival would have disastrous results. Hence, there was no deficiency in service on part of the school management. The doctor who operated stated that if the operation had not been done it could have been disastrous and he would have been charged with omission, and the hospital was adequately equipped for the operation. Accordingly the complaint was dismissed. [Thomarina Marcel D 'Cruz v. Management of St. Joseph's Boys Higher Secondary School & Ors., 1998 (I) CPJ 340 (TN SCDRC).]

13-51.16 Ophthalmology-Foreign body in eye-Contributory negligence- No deficiency in service-The complainant, a welder by profession was hit in his left eye by a small iron particle, and went to the Ist opposite party for treatment, but as there was no relief he went to other doctors and finally to the opposite party No.5, who operated after confirming presence of a foreign body on ultrasound. He ultimately lost his vision.

The District Forum had held the opposite parties No.1 and 2 negligent for not advising x-ray and opposite parties No.2 and 4 for not doing an ultrasound scan.

On appeal, the State Commission held that the complainant presented only after 3 days of injury to opposite party No.1 and even then he did not disclose about the injury . He was advised to come for a check-up but did not tum-up and kept changing doctors.

There was no clear evidence that the treatment and procedures adopted by the opposite parties were not proper or they were deficient in any respect. An expert witness who was examined was also not able to" bring out anything in his evidence which would establish that there was any deficiency on the part of the opposite parties. Hence, the order passed by the District Forum was set aside and the complaint was dismissed. [Jyoti Vivek& Ors. v. Pradeep & Ors., 1998 (I) CPJ 191: 1997 (3) CPR 220 (Ker. SCDRC).] 13-51.17 Ophthalmology-Cataract operation-IOL implant-Loss of vi- sion-No negligence-The complainant, aged about 75 years was operated for cataract right eye and Intra Ocular Lens (I.O.L.) implanted. He developed severe infection and lost vision of that eye. It was alleged, that this occurred due to gross negligence and improper application of skill and lack of aseptic conditions.

The State Commission held that the opposite parties were fully qualified to undertake this operation and were having latest equipments, and there is no evidence on record that the premises were not in aseptic conditions. There was always a risk of infection in case of aged and diabetic patients. The Commission refused to apply the principle of res ipsa loquitur on the ground that in case of medical treatment unswept of best care a patient may die. But that does not by itself establish negligence. Complaint dismissed. [Air Commodore Satya Naryana v. L. V. Prasad Eye Institute, 1998 (I) CPJ 110 (AP SCDRC).]

13-51.18 Ophthalmology-Post-operative care-Lack of proper care and treatment following eye surgery-Principal of Boarding School and ophthalmologist held negligent for not looking after properly-Compensation of Rs. 50,000 awarded against the principal of school and doctor-The complainant's 7 year old son, studying at St. Andrews School, Ranchi as a boarder injured his right eye and was operated upon at Kashyap Eye Hospital. The following day he was handed over to the parents by opposite party No.1, who had come with the child to Calcutta by train. It was alleged that it was negligent to discharge the boy and bring him back to Calcutta in a most uncomfortable and cruel manner, with blood oozing from his eyes, despite further treatment he still has diminution of vision of his right eye. The State Commission held that the school authorities should have informed the parents and taken the initiative to treat him at a proper eye hospital. The poverty of the boy's parents was too well known to the Principal of the School and the boy was very cruelly treated to meet the present pathetic condition. Both the Principal and Dr. Kashyap were held negligent and asked to jointly and severally pay a sum of Rs. 50,000 as compensation. [Laxmi Joy Prasad v. Dr. Cameroon & Ors., 1998 (1) CPl 336: 1998 (2) CPR 450 (WB SCDRC).]

13-51.19 Ophthalmology-Cataract operation-Damage to eyesight following eye surgery-Negligence held- The complainant was operated for cataract in his right eye by Dr. R.P. Gupta, on 23.2.94. Due to some problems persisting in his eye he was referred to Dr. Anjani Kishore who diagnosed retinal detachment (RD) and operated upon him. His condition rather deteriorated and he was referred to Dr. Ahuja in Aligarh, who noted aphakia with total retinal detachment and opined that it was a hopeless case. Dr. G.K. Nag pal, Aligarh also expressed similar views. The State Commission applied the maxim res ipsa loquitur but the opposite party failed to explain as to how the patient's eye-sight was damaged. Dr. Anjani's findings in the prescription were recorded very miserably. The finding of vitreous hemorrhage recorded in his prescription dated 29.3.1994 was not followed by what treatment was to be taken and when the patient was to consult him later. A compensation of Rs. 1.90 lac .was awarded. [Ram Babu v. Dr. Anjani Kishore Pd., 1998 (2) CPR 224: 1998 (2) CPl 684 (Bih. SCDRC).]

13-51.20 Ophthalmology-Catatract operation-Loss of vision-Patient not fit for surgery-Negligence held-Compensation of Rs. 50,000 awarded-The complainant had contacted Dr. S.B. lain for the treatment of her right eye. She was advised operation for her cataract within the next 3 weeks, as it was already too late. The doctor conducted the operation, but complications occurred and ultimately she lost her right eye-sight completely. The District Forum, Hissar had held deficiency in service on part of Dr. S.B. lain as he had himself admitted that it was already too late, and it wasJ1.ot a fit case for surgery, but he had conducted it on the asking of the complainant he elf. Rs. 50,000 was awarded as compensation. On appeal the State Commission upheld the decision of the District Forum, on the ground of the doctor's admission that it was not a fit case of operation, and the fact tllat he charged a sum of Rs. 9,500 as operation charges and the patient was admitted to his Hospital where she remained for a number of days and was discharged on 9.10.1992 was sufficient to prove that there was deficiency in rendering medical service on the part of the doctor. [Dr. S.B. Jain v. Moon Devi & Anr., 1998 (2) CPl 239 (Har. SCDRC).] 13-51.21 Ophthalmology-Cataract operation-Diabetic patient-Failure to rule out diabetes before cataract surgery-Negligence held-Compensation ofRs. 25,000/- awarded by the District Forum upheld -In the instant case, the State Commission upheld the decision of the District Forum in finding deficiency in service on the part of the appellant and awarding Rs. 25,000/- as compensation.

Mr. A. Shahjahan aged 65 years was operated for cataract of the left eye, but complications developed and ultimately his eye had to be removed. Negligence was held on the ground that the doctor had not inquired whether the complainant was a diabetic. A doctor cannot take shelter in the fact that the complainant himself did not reveal the fact before the cataract operation was performed. Doctors treating illiterate patients coming from villages have to question about their health and general condition. In fact this is the normal practice adopted by doctors in respect of all patients.

As a result of this omission the precaution that had to be taken in the case of a diabetic while operating for cataract were not taken resulting in complications and loss of his eye. Compensation of Rs. 25,000/- awarded by the District Forum, although considered low, upheld by the State Commission. ( Christian Medical Centre v. A. Shahjahan, 1998 (3) CPJ 242 (AP SCDRC).]

13-51.22 Ophthalmology-Ptosis surgery-Deformity of one eye-Superior rectus (SR) muscle cut on operation resulting in injuries to cornea and eye ball-Negligence held--Compensation of Rs. 21ac granted-Rs. 50,000 to be paid by doctor who conducted operation and Rs. 1,50,000 by Hospital-It has been found that temporary weakness of homolateral superior rectus may occur especially if one or more ptosis operations have been done previously, but in this case only one operation has been carried out and the doctors avoided further attention to the patient. It also shows that the superior rectus muscle has been injured during the operation, otherwise, the weakness would have disappeared in a few weeks or months. According to the findings, the residual ptosis remains after a previous resection of the levator, a second resection of the levator could produce a satisfactory result, which in this case has not been carried out because the first operation was a failure due to insufficient resection or to pulling out of the sutures. It has also been noticed that the resection of the levator muscle is the only operation that can give a result. The operation perfect cosmetic that can give a result. The operation in this case was not properly carried out. Compensation of Rs. 2 lac granted -Rs. 50,000/- to be paid by doctor who conducted the operation and Rs. 1,50,000/- by the hospital. (Jaswinder Singh v. J:S. Saini, 2000 (2) CPJ 262 (Chd.- UTCDRC)]

13-51.23 Ophthalmology-Radial Keratotomy-Loss of vision-Patients be- low 21 years of age whose myopia not stable not fit for keratotomy-Operation of a teenager- Negligence held--Compensation of Rs. 1 lac awarded with 12% interest from date of complaint-The patient was a teenager or his age was just 14 years. As per the very statement of the opposite party as recorded in their reply dated 15.9.1998 the myopia was not stable and on 6.8.1992, it was 12 and 14 and on 21.7.1993, it was -16 to 18 as recorded by the opposite party himself. The Annexure A being citations from certain books, filed by opposite party nowhere states that Radial keratotomy can be performed on teenagers or can be performed in case of those people also whose myopia is not stable. The opposite party failed to explain as to why he performed an operation on a teenager despite clear instructions given in the Medical Books to avoid operation on a teenager. The opposite party has obviously committed a breach of duty by performing an operation on a teenager which as a reasonable and prudent surgeon he should not have performed. Compensation of Rs. 1 lac awarded with 12% interest from date of complaint. (Smt. Adarsh Bararia v. Dr. P.S. Hardia, 2000 (2) CPR 188 (MP SCDRC)]

13-51.24 Ophthalmology--Cataract extraction-Loss of vision-

Complainant, 77 years of age having brown cataract in both eyes-No evidence as to negligence in operation and taking pre- and post-operative precautions and no expert examined-Fall of nucleus or retinal detachment itself does not lead to conclusion of negligence of opposite parties-In the present case, on the one hand, the complainant has failed to establish any kind of negligence or deficiency on the part of the opposite parties, and on the other hand, both the surgeons in very categorical words, supported by medical literature, have explained as to what was done by them during the course of the two operations, what known complications of nucleus fall and retinal detachment happened. The surgeons took necessary precautions and discharged their duty properly. Simply because the mishap of nucleus fall or retinal detachment happened, opposite parties cannot be held responsible for any kind of negligence or deficiency in service, more so, when the complainant is aged 77 years and was having brown cataract in both the eyes and his vision in both the eyes was already very low, and he himself preferred to have phaco surgery against the advice of OP for cataract extraction with IOL. [Basant Mahadev Samvatsar v. Dr. Sudhir Mahashabde & Ors., 2000 (3) CPR 349 (MP SCDRC)]

13-51.25 Ophthalmology-Eye micro surgery-Cataract extraction-Loss of vision-Surgeon noticing complicated matured cataract in patient's right eye with signs of anterior uveitis (one of the signs of retinal detachment)-Operation without obtaining ultra sound B scan report, an essential to ascertain state of posterior segment of eye-Patient not enlightened of adverse effect of surgery beforehand-Negligence and deficiency of service, held-Compensation of Rs. 1 lac awarded-Doctor admits that excepting production of E scan report, other pathological reports were produced by the complainant prior to the operation. E scan report was eventually done after the operation was done. This report demonstrates that there was retinal detachment which is not curable resulting in the loss of vision of the complainant permanently.

The doctor has, of course, said during his examination in court that he had explained the danger inherent in the operation because of want of this report, but, there is nothing in writing in the prescription or anywhere in the treatment sheet. The complainant had eventually got one E scan report done when everything was over and he had become completely blind of his right eye. Had the complainant been told about the exact position - of the matter he might not have opted for the operation or might have obtained second- -- medical opinion about the advisability of such an operation.

Ultrasonic investigation by the E scan technique gives valuable information concern- ing the retina. The doctor himself advised E scan report before operation but he proceeded with the operation without such report. Therefore, it can be said that the doctor acted in a rash and negligent manner. There has been deficiency in service on the part of the doctor and as such he is liable to pay compensation to the complainant. Compensation  of Rs. 1 lac awarded. [Sourindra Mohan Ghosh v. D. V. Pahwa, 2001 (1) CPR 200 (WE SCDRC)]

13-51.26 Ophthalmology-Cataract operation-Loss of vision-Complications arose without using Phaco Emulsifier-Reversion to a larger incision to perform synechiotomy-Massive posterior synechia with increased intra-ocular pressure (I.O.P .) and bulging ofiris in the wound-Surgeon adopting conventional method of surgery-No evidence to show adoption of any new method resulting in complications-None of the surgeons attending the patient subsequent to the event opined that complications developed because of negligence on the part of the surgeon-Complainant failed to establish want of reasonable care and skill in performing surgery-Complaint dismissed-The opposite party-surgeon states that the complications occurred during the operation. The Phaco Probe was not used at all. He had do revert to a larger incision to perform a synechiotomy. According to him, the complications arose without using the phaco emulsifier, he states that there a was massive posterior synechia with increased intraocular pressure (lOP) and bulging of the iris in the wound.

The complainant got his eye examined both inside the country and abroad and ultimately got the damage repaired to some extent. The grafting of cornea was done and he has put on medicine regularly and he expects that he may get 60% to 70% relief, anyway, none of the doctors who had examined him after the incident has said that the complications occurred due to wrong application of method of surgery. At least there is no evidence to show that the surgeon adopted a new method resulting in the complications. He states that his case was that the conventional approach was made and as soon as the incision was given the petitioner's l OP went up. The pupil was constricted and there was massive posterior synechia.

This being the position it is difficult to conclude that the complainant has succeeded in establishing want of reasonable care and skill in the matter of performing surgery . There is also no material to show that he acted negligently. [ Mr. R.L. Sethi v. Dr. Somnath Chakraborti, 2001 (2) CPR 379 (WB SCDRC)]

13-51.27 Ophthalmology-Cataract operation-Loss of vision-Implantation of Intra Ocular Lens (IOL)-Patient not following follow up treatment-Procedure followed by doctor for implantation not shown to be wrong by production of any expert evidence-Held, no negligence established-in the affidavit of the Respondent, he has given in great detail the procedure followed by him for I.O.L. implantation. This has not been challenged based on any expert evidence. It is not enough to state that after eight months of the second operation, I.O.L. implantation had to be removed, thus proving negligence of the Respondent-2. This could at best be aground but certainly not a proof of negligence. It was for the appellant to prove negligence by examining expert witness challenging the procedure adopted by him, which a doctor claiming specialisation in this regard would not have done. It was for him to prove by evidence whether by oral evidence or through a standard medical literature, either that the doctor did what he ought not to have done or did not do what he ought to have done, resulting in a situation where the patient finds herself. In this case, no such evidence has been led to contradict the evidence adduced by the Respondent-2, thus, the appellant has failed to prove any negligence on the part ofRespondent-2. [Ms. Rohini Devi v. Dr. H.S. Chudavat. 2001 (3) CPR 172 (NCDRC)]

13-51.28 Ophthalmology-Cataract extraction-Loss of vision-Negligence in not removing thread cord after operation alleged-Vision impairment attributable , to wrong surgery, not opined by experts-No negligence-The complainant having --~ trouble in his left eye approached opposite party-1 for treatment. Opposite party I"

referred him to Dr. S for further investigation because he found cataract in both eyes. Dr. S examined the patient and made glaucoma test on both eyes. After the report of Dr. S was available the same was produced before opposite party-l who advised the patient for cataract extraction and trabs left eye first followed by right eye. The doctor suggested some pre-operative routine examinations which were done and the date of operation was fixed. On that date, the operation was done and he was discharged on the same date. Thereafter, the complainant approached opposite party-1 on various occasions and was also under his treatment. Being dissatisfied with the result of operation, the complainant consulted some renowned Surgeons for regaining vision of his left eye. But there was no improvement, and he lost vision of his left eye. The complainant makes opposite party-1 responsible for losing the vision of his left eye. He states that one thread cord was not removed after the initial operation. But it was removed after a lapse of 2 years . when he complained of losing regular shape of left eye. According to the complainant, this non-removal of the cord was an act of negligence on the part of the opposite party-l and this resulted in the loss of vision.

Held: The complainant consulted various renowned physicians of his town but none of them has observed that the loss of vision was attributable to the wrong surgery done by opposite party-l. The complainant does not examine any expert on the subject to establish his allegation of negligence on the part of the doctor. Unfortunate though the incident is. the complainant should establish negligence on the part of the doctor to succeed in a case like this. There is hardly any cogent material to substantiate the allegation contained in the petition of complaint. Under the circumstances. it cannot but be held that the complainant has failed to prove the allegations against the opposite parties. So he is not entitled to get any relief. (Nirmalendu Paul v. Dr. P.K. Bahshi. 2001 (I) CPJ 466 (WE SCDRC)]

13-51.29 Ophthalmology--Cataract operation-Loss of vision-Phaco Emulsification-Patient abandoning treatment prescribed by OP, consulted and got treatment from several eye specialists without approval of OP-No evidence to show that treatment given by OP-doctor was faulty-No negligence-The complainant having cataract in his eyes underwent an operation for Phaco Emulsification. i.e.. by implanting Intra Ocular Lens (IOL) in the opp. party hospital. After getting the right eye operated from opposite party No.2, Dr. G. the complainant consulted other eye surgeons at different hospitals at Chandigarh and also consulted a doctor at A.I.I.M.S.. New Delhi and also had laser treatment and other tests which facts were not in the knowledge of Dr. G and the consultations were not made with the consent of the opposite party No.2. In other words. the complainant himself decided to have second and subsequent opinion and treatment after his operation conducted by Dr. G. Apart from the statement of the complainant there is no other medical evidence of any eye specialist to show that the diagnosis of the ailment in the eyes of the complainant made by the opposite party No.2 was incorrect and faulty and line of treatment prescribed and given by the opposite party No.2 was not the correct line of treatment. Held: The complainant without the advice or approval of Dr. G abandoned the treat lent prescribed by Dr. G and consulted several other eye specialists at Chandigarh and also at A.I.I.M.S. at New Delhi where he underwent laser treatment and other tests which according to Dr. G should not have been undertaken so soon after the operation for the cataract in the right eye. In other words. the complainant himself is responsible for the condition of the eye. in which he is placed after the operation. (Yoginder Beri v. Grover Eye and E.N.T. Hospital & Or~... 2001 (3) CPJ 106 (Chd. UTCDRC)]

13-51.30 Ophthalmology--Cataract operation-Loss of vision-Disclaimer- Plea of doctor that he had not performed any surgery on the eye of complainant- Prescription receipt and affidavit of witness that payment made in his presence in evidence-District Forum holding negligence of doctor, not be interfered with- (Ashpal Singh v. Sher Singh. 2002 (1) CPJ 73 (Del. SCDRC)]

13-51.31 Ophthalmology--Cataract operation-Loss of vision-Three opera- tions done-Patient not furnished with medical records nor at least a summary of treatment-Records said to be destroyed by doctor they being old-Doctor failed to show pre-operative condition of eyes, indications of operations, operative find- ings and post-operative condition of eyes-Negligence held-Res ipsa loquitur applied--Compensation of Rs. 1,85,000 with 12% interest p.a. from the date of complaint awarded by the District Forum upheld with cost Rs. 1,000/--The complainant developed difficulty in vision in January , 1991, for which he consulted the ,... opposite party. The glaucoma was diagnosed in both eyes and opposite party operated .:, left eye on 9.1.1992 and right eye on 21.4.1992 assuring him that vision would improve. ; The Complainant used to go for regular follow up but there was no improvement. In June, 1992, the opponent advised him for cataract operation which he agreed and operation was performed on right eye on 16.6.1992.  As there was no improvement, the complainant. consulted another ophthalmic surgeon R Dr. Shroff who cert1fied on 30. 12. 1993-"This is to certIfy that Mr. Ramesh Chandra H. Patel. has been examined today. Condition of his retina in both eyes is not good. Hence his vision is very poor and is less likely to improve in near future therefore he may be considered as a visually handicapped person." It is surprising that the opponent had not produced the medical record of the complainant on the ground that he had destroyed all his old records. It is not understood how the register and consent forms were not destroyed and conveniently, only medical record was destroyed. It is an established principle that it is the duty of a person in possession of record to produce before the court and adverse inference could be drawn in case of non-production. It is needless to mention that without having the pre-operative and post-operative findings and other investigation reports no expert can give an opinion whether the treatment/operation was correct or not. Thus, non-production of medical record takes away the opportunity of the complainant to call for an expert opinion. In the present case the opponent admittedly had done three operations but he failed to explain what was the condition of respective eye before every operation, what was the indication of each operation, what operation he performed, what was the result of every operation and why in spite of that the complainant lost his vision. That was the reason why Dr. Shroff (who certified that the complainant could be considered as visually handicapped person) could not say whether the complainant lost his vision because of negligence of the opponent or not. It was further contended by the learned Advocate of the opponent that glaucoma causes damage to the optic nerve because of raised intraocular pressure and it may have worse prognosis even after the successful operations. He had produced references from the text books in the support of this argument. In our considered opinion this argument stands only when the opponent could show the pre-operative condition of the eyes, indications of the operations, operative findings and post-operative conditions of the eyes. In this case the opponent failed to explain any of them. This amounts to deficiency in service.

The principle of "res ipsa loquitur" will apply here. Compensation of Rs. 1 ,85,000 with 12% interest p.a. from the date of complaint awarded by the District Forum upheld with cost Rs. 1,000/-. [Dr. Shyam Kumar v. Rameshbhai Harmanbhai Kachhiya, 2002 (1) CPR 320 (Guj. SCDRC)]

13-51.32 Ophthalmology-Surgery of eye-Loss of vision-Stitches found loose on removal of dressing, restitched-Pain and swelling on removal of stitches ultimately resulting in loss of vision in right eye-Negligence held-Performance of operation at patient's residence under pressure, or no payment was received, no defence-Complainant entitled to compensation-It was stated in the complaint, that after operation when the appellant, on 25.4.1999, at the residence of the respondent, opened the dressing of the right eye, it was noticed that the stitches were loose and the respondent was directed to have the same restitched at the hospital run by the appellant- Finally, the stitches were removed on 17.5.1999. The allegation of the respondent, in the complaint, filed by her was that the respondent suffered pain, swelling in her right eye and when there was no relief, she contacted another doctor, who opined that there was no vision in the right eye. The respondent also visited the All India Institute of Medical Sciences, where the Authorities of that hospital also finally informed the respondent that there was no possibility of vision in her right eye. The stand taken by the appellant was that there was no negligence/deficiency on his part. The learned District Forum, vide impugned order, has held that there was negligence on the part of the appellant resulting in loss of vision in the right eye of the respondent. It is also not in dispute that the stitches were found loose after the operation on 25.4.1999. Paramount consideration for the appellant while rendering services to his patients is the interest of the patient and in case the appellant felt that it would not be possible for him to operate upon the eye of the respondent successfully at her residence in that event he should have refused to operate the right eye of the respondent at her residence and should have told the respondent in clear-cut terms that the operation cannot successfully be performed at the residence of the respondent. As a result of negligence on the part of the appellant, the respondent has lost vision in her right eye and looking to the gravity of the consequences flowing from the negligence on the part of the appellant, the amount of compensation and relief granted by the District Forum to the respondent also appears to be adequate. [Dr. J.P. Goel v. Smt. Pushpa Verma, 2002 (1) CPJ 28: 2002 (1) CPR 467 (Del. SCDRC)]

13-51.33 Ophthalmology-Eye damage after surgery-Before fixing date of surgery complainant examined thrice and all routine pre-operative tests done- Still there was raised ocular pressure and despite administration of several medicines to reduce the pressure, the lens nucleus popped out and vitreous followed, a case of impending expulsive haemorrhage-OP stopped surgery, bleeding control- led, closed the eye by a pad and referred the patient to a hospital with better facilities-Expert opinion on record that such incident may occur at any time during eye surgery, one in a thousand cases-OP not guilty of negligence-The complainant has examined one Dr. B (PW .5) who is an expert in the field. He has opined that there is a chance of expulsive haemorrhage and it may occur at any time during surgery and that the only treatment is vitreous retinal surgery .He has further opined that the Doctor should have closed the eye and referred the patient to any other hospital for better treatment. In this case the appellant had stopped the operation, closed the eye of the complainant by pad and referred her to SSKM Hospital for better treatment. The complainant was admitted in the Nursing Home at 5.30 p.m. on 21.8.1998 and he was discharged on 23.8.1998 at about 10.00 a.m. The Forum noticed that the error of the judgment or the choice of treatment is a good defence which can under the circumstances in a particular case be set up by an answering doctor but the Forum observed that in this particular case, the doctor was responsible for a mis-adventure in deciding to operate the eye of the complainant on the very same day when she was first examined. It may be observed that the Forum overlooked the fact that before fixing a date for operation, the complainant was examined thrice and several routine pre-operative investigations were suggested. Counsel for the appellant has drawn our attention to the notings on the left hand side of the prescription to urge that the intra-ocular pressure of the patient was recorded on 19.5.1998 when she was examined for the first time. He submits that the notings therein indicate that it was normal. It appears that the Forum noticed the observation of the several authorities in this regard and there is nothing to show that OP was guilty of negligence. He did not fall short of the standard of a reasonably skilled man when this type of incident may occur in one out of 1,000 cases. Anyway, having regard to the facts and circumstances of the case and the authorities on the subject the Forum was not justified in finding the present appellant guilty of negligence in the matter of performing operation. The Forum ought to have dismissed the case. For the reasons aforesaid the appeal which was allowed and the judgment of the Forum was set aside and the complaint petition dismissed on contest but without any cost. [(Dr.) I. Ahmed v. Sumitra Biswas, 2002 (2) CPJ 275 (WB SCDRC)].

13-51.34 Ophthalmology-Cataract removal-Doctor himself advising ultra- sonic B-Scan report before surgery, but performing the operation without such report-B-Scan eventually done after the operation and the report demonstrated that there was retinal detachment not curable resulting in loss of vision of right eye of complainant permanently-Had the complainant been enlightened about the exact position of the matter he would not have opted for operation-Complainant also denied of an opportunity to get an expert opinion also-Opposite party guilty of negligence and liable to pay compensation of Rs.l,OO,OOO/- to complainant-The doctor did not note in the prescription nor in any document about the risk involved in the matter. The doctor has of course said during his examination in court that he had explained the danger inherent in the operation because of want of this report, but, there is nothing in writing in the prescription or anywhere in the treatment sheet. The complainant had eventually got one B-Scan report done when everything was over and he had become completely blind ofhis right eye. Had the complainant been told about the exact position of the matter he might not have opted for the operation or might have obtained second medical opinion about the advisability of such an operation. It is noticed that because of failure of the doctor to enlighten the complainant about the entire matter, the complainant was denied of all the opportunities of having abetter expert opinion in this regard. Ultrasonic investigation by the B-Scan technique gives valuable information concerning the retina. The doctor himself advised B-Scan report before operation but he proceeded with the operation without such report. Therefore, it can be said without any hesitation that the doctor acted in a rash and negligent manner. Therefore, on consideration of all the materials on record it is to be held that there has been deficiency in service on the part of the OP and as such he is liable to pay compensation to the complainant which was assessed as Rs. 1,00,000. [ Sourindra Mohan Ghosh v. Dr. D. V. Pahwa, 2002 (2) CPJ 243 (WB SCDRC)]

13-51.35 Ophthalmology-Myopia-Opposite parties, while performing op- eration ofboth eyes of complainant using Laser technology (PRK-Photo refractive Keratectomy)-While no negligence alleged in respect of left eye, as regards right eye though vision improved complainant alleging development of central island", monocular diplopia and ghost image, and had the opposite parties used the better method available, i.e., "Lasik technology (Laser Assisted in Situ Keratomileusis) instead of PRK the said consequences would not have arisen-Complainant explained the risks involved in PRK by OPs and he gave consent for PRK procedure-PRK is well recognised method for higher myopia-Expert opinion that both PRK and Lasik relatively same and no substantial difference between the two and no expert opined that Lasik to be preferred to PRK-When operation performed by OPs Lasik not available even in USA-Doctors not guilty of negligence-Complainant directed to pay costs to opposite parties-Held-PRK method is well recognized specially in the case of high myopia. Both the procedures have plus and minus points compared to each other. In the study of moderate to high myopia with reference to PRK and Lasik prepared by a team of ophthahnologists led by Dr. Peter S. Harsh it is mentioned that the essential outcomes of both PRK and Lasik in this study show no substantial difference in efficacy at 6 month follow-up. Both PRK and Lasik seem to be relatively safe and effective procedures for the correction of moderate to high myopia. Photo refractive keratomileusis has the advantage of greater ease of surgery without complications associated with a corneal flap. Laser in situ keratomileusis has advantages of faster visual recovery and possibly less likelihood of loss of spectacle- corrected visual acuity. It should be stressed that this study assessed one laser using a particular ablation algorithm and looked only at the correction of higher degrees of myopia. The relative results of PRK and Lasik using other lasers and for lower degrees of myopia await future clinical investigation.

No expert in the present case who examined the complainant has stated that Lasik could have been preferred than PRK the procedure adopted by Dr. S. counsel for the opposite parties pointed out that at the time when Laser Surgery (PRK) was performed on the complainant Lasik was not available even in USA, and it was only after six months that FDA (Federal Drug Authority) of USA gave its approval. It was submitted that the problem which complainant felt has nothing to do with Laser Surgery performed on him and that it is more neurological problem. In this connection he made reference to letter ofMay, 1999 ofDr. Baker to Dr. Malcolm Mazow where he says patient complains of muscle problem and Dr. Baker therefore, suggested his muscle imbalance evaluation. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of professional opinion. A medial practitioner is not an insurer, and so cannot be blamed every time if something goes wrong. Indeed, it is widely acknowledged that in medicine, in particular, things can go wrong in the treatment of a patient even with very best available care. This has now been reflected in judicial statements of the law.

Any allegation of negligence attributed to the opposite parties is wholly misplaced. Before the operation was performed complainant was well-aware of the procedure and the consequences. There is no deficiency in the operation and there is no negligence. As a matter of fact there is no allegation of any negligence against Dr. M the second opposite party. Her being impleaded as an opposite party was not proper. An allegation of negligence against a doctor is a serious matter. It is an attack on his professionalism which he will certainly feel deeply. Complainant has utterly failed to prove any negligence of any sort against Dr. S. [Tarun Thakore v. Dr. Noshir M. ShrofJ, 2003 (1) CLD 62 (NCDRC)]

13-51.36 Ophthalmology-Complicated myopic cataract-Opposite party performing cataract operation on left-eye of complainant-Complainant again approaching OP for removal of cataract on right eye-If OP was negligent in the operation of left eye he would not have been approached again for operating right eye and complainant not approaching OP for 5 years-OP reiterating that complainant suffering from myopic retinal degeneration, an age-related problem having no cure-Complainant not discharging the onus to prove diagnosis and treatment deficient or not in accordance with accepted medical practice-No deficiency in service (negligence) be attributed to OP, that too in a complaint filed after 5 years of the operation-In order to decide whether negligence is established in any particular case, the alleged act or omission or course of conduct, complained of, must be judged not by ideal standards nor in abstract but against the background of the circumstances in which the treatment in question was given and the true test for establishing negligence on the part of a doctor is as to whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with reasonable care. Merely because a medical procedure fails, it cannot be stated that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden of proving the same rests upon the person who asserts it.

The Opposite Party noticed that the complainant was suffering from complicated myopic cataract in his both eyes, which was central in location on account of which the vision was being further reduced. The opposite party advised cataract removal operation of the left eye of the complainant and that operation was successfully performed by the Opposite party on 15.5.1993. The Opposite party prescribed proper lenses to be used by the complainant after the above said operation. Thereafter, the complainant again , consulted the Opposite party for removal of cataract in his right eye. In case there was \ any deficiency in service, defect or imperfection on the part of the Opposite party , in performing the cataract operation, the complainant naturally would not have approached the Opposite party for operation in his right eye. On the basis of material on record, it is apparent that when the complainant approached the Opposite Party for removal of cataract in his right eye, the Opposite Party explained the complications and thereafter performed the operation on 23.10.1993. On the basis of material on record, it is apparent that for about five years the complainant did not approach the Opposite Party .In case there was any imperfection, defect or deficiency, in that event the natural conduct of a person in such like situation would have been that he would have decidedly approached the concerned doctor without any loss of time and would have complained about the deficiency/defect in the services rendered by him. On 24.3.1998 too, the complainant approached the Opposite Party with a view to consult him and the Opposite Party , after examining the complainant, reiterated his opinion given by him earlier, saying that the complainant was suffering from myopic retinal degeneration, which was an age-related problem and there was no medical cure for the same. Moreover, as-per settled law, the onus to prove that there was negligence/deficiency in service on the part 'of the Opposite Party while diagnosing and/or in treating the complainant was on the complainant: the complainant in the given facts has failed to discharge the onus, which was on hint, because on record there is no material/expert opinion/evidence which may indicate that there was any deficiency/negligence on the part of the Opposite Party in diagnosing and/or in treating the complainant. [V.P: Chopra v. Dr. S.P. Kumar, 2003 (2) CLD 567 (Del. SCDRC)]

13-51.37 Ophthalmology-Cataract operation-Prior pathological tests, necessary of-Chronic patient of hypertension-Surgery should not have been done without bringing down the blood pressure-Opposite parry without any pre-operational tests operating one eye causing retinal detachment resulting in total loss of vision of that eye-An act of gross negligence-Compensation of Rs. 1 lac awarded by the District Forum upheld with costs Rs. 1,000/--Before cataract operation is performed, the patient is required to undergo B Scan EKO x-ray. Admittedly, such report has not been called for and the doctor has operated upon the right eye of the complainant without such report which was absolutely necessary to ascertain the state of posterior segment of the eye. After the operation, the B Scan X-ray was done which discloses that there was retinal detachment. This retinal detachment resulted in complete loss of vision of the complainant which is not curable. There has been gross negligence and laches on the part of the appellant doctor conducting the cataract operation of the complainant without conducting the pre- and post-operational tests which have resulted in complete retinal detachment causing loss of vision permanently. The appellant, further admitted medical negligence by not following the guidelines mentioned in the test book of Mr. N.S. Jaffe, particularly, when he claims, himself to be a qualified, efficient and experienced eye surgeon. There is no denial of the fact that the doctor has performed the cataract operation of the complainant without controlling high blood pressure and/or without observing the guidelines mentioned in the text book. Nothing has been brought on record to show that the complainant was, in anyway, negligent and/or disobeyed the medical advice after having been operated upon. Ultrasonic investigations through B Scan technique suggest extremely valuable and desired function regarding retina and in the case in hand, cataract operation was performed by doctor without obtaining such report. In that view of the matter, it can safely be held that doctor while performing the cataract operation of the complainant has acted upon in an extremely rash and negligent manner. Compensation of Rs. 1 lac awarded by the District Forum upheld with costs Rs. 1,000/-. [(Dr.) Vivek Sahay v. Ajay Prasad @ Ajay Prasad Gupta, 2003 (3) CLD 101: 2002 (3) CPR 303 (Jharkhand

SCDRC)].

13-51.38 Ophthalmology-Loss of vision-Doctor using tonometer in the eyes of patient-Patient having a history of old viral keratitis that causes ulcer-Allegation of 90% loss of eye-sight due to use of tonometer-No expert evidence adduced to show loss of vision, if any, due to use of tonometer-No negligence- Order of District Forum dismissing complaint upheld by State Commission-The prescriptions of a number of doctors have been filed and all the prescriptions show that the patient was suffering from old viral keratitis disease. It causes ulcer in the eyes. Tonometer cannot cause any such ulcer. The appellant has already alleged that he was suffering from eye disease from long before. None of the doctor ever reported that there was any loss of sight due to the use of tonometer. Rather the doctor has given a chart that even after 15.2.1995 in all the prescriptions as issued by various doctors, there was vision 70%,58.5%,91.4%,83.6% etc. After three years also, the vision remained the same. It was varying from time to time. In May, 2001, the eye-sight was up to 83.6%. Therefore, it is totally false and baseless to say that the eye-sight of the appellant have gone up to extent of90% by the use of tonometer. If the vision was affected temporarily, for one or two days, for this, doctor cannot be held to be guilty .

Where the doctors whose services were availed by the complainant, had filed affidavit in favour of the doctor and complainant has not given any expert evidence to support his allegations, the doctor cannot be held to be guilty of negligence. There is absolutely no report what to say of any expert opinion that there was loss of vision, if any, due to the use of tonometer. [GovindRam Aggarwal v. Dr. V:P. Gupta & Anr., 2003 (2) CPJ 110: 2003 (3) CPR 360 (Uttaranchal SCDRC)]

13-51.39 Ophthalmology-Cataract operation-Both eyes of complainant developing cataract-No instructions as to which eye to be operated first-Both eyes having immature cataract but as the left eye having decreased vision as per hospital papers, doctor operated that eye and IOL implanted-Operation all right and patient discharged, with instruction to observe strict sanitary conditions-But later infection developed causing permanent loss of vision and removal of the eye- AIlegation that development of infection due to operation of left eye instead of right eye-Unsustainable-When infection developed, doctor referring patient to higher centre, revealing his vigilance about condition of the patient-N o negligence on the part of the doctor-Complaint also not maintainable on the ground that the operation was performed in a Government Hospital free of cost-Hence, complain- ant not a consumer under the Consumer Protection Act, 1986-The District Forum has held the appellant doctor negligent only on this ground that he performed operation of left eye instead of right eye but from the papers on record, it was found that the complainant was examined by Dr. M.K. Ron 20.4.1996. This shows that vision of both Right and Left Eye 6/24 and 6/24 and the cataract was developing. This means that the cataract was developing in both the eyes. In the papers on record there is no mention about the fact that which eye was to be operated. Only operation notes reveal that left eye was operated. This means that the dilation etc. was done of both the eyes and because vision was less in the left eye, therefore, doctor operated the left eye. The consent papers signed by the complainant's son also do not mention any particular eye and a word' , eyes' , has been mentioned for operation, therefore, it cannot be said that preparations were done for the operation of right eye and operation was done of the left eye. Moreover, the complainant had complicated cataract in both the eyes, therefore, operation of cataract of both the eyes was to be done and at first instance, operation of left eye was done. From the record it cannot be said that in the papers for the preparation of operation writing, “dilate right pupil' , means that the preparations for operation of right eye were done and the left eye was operated. Therefore, the complainant has not proved beyond doubt that the appellant had issued instructions for preparations of operation of right eye and had done operation of left eye. Post-operative record reveals that after operation the condition of the patient was healthy, wound healthy, pupil was normal in size on 8.12.1996, 9.12.1996 and 10.12.1996. This means that the operation was all right and the IOL was also in its right position, therefore, the patient was discharged on 12.12.1996 with the instructions to observe strict sanitary conditions. Unfortunately, infection developed which caused permanent loss of vision and removal of left eye became necessary. However, it cannot be said that in first operation, infection developed due to operation of left eye instead of right eye. There are several causes of infection in which one of the causes is non-observation of sanitary instructions by the patient. However, it cannot be said that the infection developed due to operation of left eye instead of right eye. In the present case the appellant who is an experienced eye surgeon had decided to treat the patient. He operated and kept the patient admitted in the Government Hospital. After five days relieved the patient. When infection developed he referred the patient to higher center. Referring the patient to higher center reveals that the appellant was vigilant about the condition of the patient. Therefore, this cannot be treated as negligence.

The appellant Doctor cannot be said to be responsible for any medical negligence. Moreover, in the present case, because the complainant was treated in Government Hospital, therefore, this case does not fall under the purview of the Act and also the complainant does not fall within the definition of Consumer as defined under section 2(1)(d) of the Act. Therefore, the District Forum was not justified in holding the complainant as a consumer, under the Act and therefore was not entitled for any compensation and the appellant cannot be held responsible for any medical negligence, therefore, the order of the District Forum holding the appellant responsible for medical negligence and awarding of compensation is erroneous and cannot be sustained. [(Dr.) P.C. Dwivedi v. Smt. Kamalabai Pandey, 2003 (2) CLD 916: 2003 (3) CPJ 170 (MP SCDRC)]

13-51.40 Ophthalmology-Radial Keratotomy-Improper diagnosis-Loss of vision-Patient undergoing surgery for both eyes as suggested by opposite party- doctor resulting in blindness of one eye and serious infection in the other-Reference to another hospital-Said hospital records revealing that the patient was having certain other complaints and his both eyes should not have been operated at the same time-Surgery of both the eyes without diagnosing the other com- plaints-Deficiency in service-Negligence held-Compensation of Rs. 2.5 lac awarded by the District Forum upheld-The complainant had undergone Radial Keratotomy for both the eyes under the first opposite party and it is also not in dispute that he lost his sight in the left eye, and there was infection in the right eye and he was referred to Sankara Nethralaya by the first opposite party. The case sheet shows that Radial Keratotomy was done for both the eyes on 4.5.1996 by the first opposite party. The entry dated 5.5.1996 shows that there was slight congestion in the right eye. The entry dated 6.5.1996 shows that right eye was very clear , there was complaint of harshness of since afternoon and pain. On 7.5.1996 there was slight congestion and an injection was given. The entry dated 8.5.1996 shows that the patient complained of pain since 4.00 a.m. and there was slight congestion at 6.30 p.m. The patient was advised to go to Sankara Nethralaya at Madras. He went to Sankara Nethralaya and was under treatment from 9.5.1996 and he was found to have visual activity of 6/5 in the right eye and was blind in the left eye. The letter dated 24.7.1996 of Sankara Nethralaya reads that: "On examination, his visual activity in the right eye was 6/24 and no perception of light in the left eye. Extra-ocular movements were full and the right eye lids were normal. The conjunctiva was showing congestion, cornea showed RK incisions with 7'0 clock incision of being full thickness Anterior chamber was deep with I + flare. The pupil was showing normal reactions, the lens was clear and there was infiltrate around the 7'0 clock incision. The left eye showed lid oedema, conjunctival congestion, corneal oedema with infiltrate with RK incisions, many ofwhich were of full thickness. The anterior chamber was formed with 4 mm hypopyon. The other details were not visible. Based on these findings he was diagnosed to have end ophthalmitis in the left eye and status post RK in both the eyes."

The complainant was suffering with some other complaints and without properly diagnosing the complainant the first opposite party has operated upon both the eyes at a time which resulted in the left eye becoming blind and right eye damaged to the extent of 6/24 which after treatment in the Sankara Nethralaya recovered to 6/5, but for the treatment in Sankara Nethralaya the complainant would have lost sight in both the eyes. He has permanently become blind in the left eye. Therefore, the complaint was rightly allowed by the District Forum. Compensation of Rs. 2.5 lac awarded by the District Forum upheld. [Oriental Insurance Co. Ltd. v. Satyavarapu Satyanarayana, 2003 (5) CLD 957 (AP SCDRC)]

13-51.41 Ophthalmology-Wrong diagnosis and improper treatment-Complainant suffering pain in his left eye as some foreign body fell in that eye-OP giving intensive mode of treatment-Giving a sub-conjunctival injection of antibiotics on the temporal region of left eye, which in the opinion of other eye specialist was unnecessary, and also some antibiotic eye drops and pain relievers-Resultant bleeding not noticed by OP-doctor-Eye become swollen and complainant advised to take bed rest-Two days later loss of vision of the eye-In the presence of a foreign body in the eye OP should have continued the treatment-Seriousness of the limb not appraised the complainant but OP simply prescribed some tablets- Negligence held-Compensation of Rs. 10,000/- awarded with Rs. 750 towards costs-When there is a foreign body, it is the duty of the opposite party to continue the treatment. But in this case, there is no evidence to show that the first opposite party has advised the complainant for further treatment of the eye, nor did he apprise of the seriousness of the limb except giving a prescription of some tablets and eye drops. There is clear negligence on the part of the first opposite party and the District Forum had rightly awarded compensation of Rs. 10,000/-. Further awarded costs ofRs. 750/-. [(Dr.) T.V. Krishna v. S.K. Afsar, 2003 (6) CLD 958 (AP SCDRC)]

13-51.42 Ophthalmology-Retinal haemorrhage-Argon laser performed on complainant-Loss of vision alleged-Certificate of a doctor of another hospital stating that there was loss of vision not supported by affidavit nor any mention of this fact in hospital's OPD ticket-Specific act of negligence has to be alleged and proved which was not done-Said certificate also not filed along with complaint- Final examination showing masculine stippling in the right eye meaning thereby that the argon laser was successful-Even the report from another hospital no- where saying any loss of vision of complainant-Complainant failed to make out a case-Held, no negligence-[K.S. Bhatia v. Jeevan Hospital, 2003 (6) CLD 382 (NCDRC)]

13-51.43 Ophthalmology-Anaesthetist-Cataract operation in known case of diabetes and asthma-Immediately after operation severe breathing trouble-No instant facility of administering oxygen-Condition of patient became serious- Taken to another hospital-Ultimately died-Failure to give insulin cover during operation-Ailment of diabetes and asthma were not given due weight while performing eye operation and complication related to diabetes and asthma occurred either during or after operation-Held deficient in providing medical service-Compensation of Rs. 31ac awarded with costs of Rs. 5,000/--The patient to be operated for cataract was suffering from diabetes and asthma. Report of blood sugar was also on a very higher side. A prudent surgeon and/or a prudent anesthetist in the ordinary course of medical practice would have definitely thought of making provision for meeting with the complication of diabetes and asthma during and after the operation. There was no mention with regard to administration of insulin during the operation in the case records. Examination of the records makes it crystal clear that just after operation patient developed severe breathing trouble,_and that the treatment of oxygen was given at a much belated point of time. Also, the hospital did not have ready facility of oxygen cylinder nor any technical know-how for timely administration of oxygen in case of emergency. It was admitted that acute anoxia would result in brain damage, if oxygen is not administered in time.

This was a clear case of imperfection in rendition of medical service. Compensation of Rs. 3 lac is awarded with Rs. 5,000 towards costs. [Chandrikaben v. Shree Vijay Vallabh Sarvajanik Hospital, 2004 (7) CLD 254 (Guj. SCDRC)L -