SRI SUBHENDU MAJUMDAR Vs. ASHISH KUMAR BHATTACHERJEE

JUDGEMENT

(1.) Aggrieved by the dismissal of his complaint (SC Case No. 175/0/97) by the West Bengal State Consumer Disputes Redressal Commission, Kolkata vide order dated 28.1.2005, Subhendu Majumdar has filed the present appeal. The complaint was filed before the State Commission alleging medical negligence and deficiency in service on the part of the opposite parties i.e., Dr. Ashish Kumar Bhattacharjee- Opthalmologist OPNo. 1 (to be referred as Opthalmic Surgeon) and "K.D.Cure" S.C.Das Memorial Medical & Research Centre - OP No. 2 (to be referred as Nursing Home) in giving treatment to the complainant viz., in relation to cataract surgery of his right eye with Intra Ocular Lens implant on 15.10.1996 and during the post surgery period, claiming a total compensation of Rs.19,05,529.30.

(2.) Before we dwell on the disputed questions/controversy raised in the present case we may in nutshell note the undisputed facts. The complainant is a practising Advocate in the District Courts of Alipore ever since 1984. In August 1996 he went to Sankara Nethralaya, Chennai for the removal of cataract from his right eye. The doctor after examination of his eyes suggested that T.C.Cryo was required to be done before conducting the cataract operation in order to prevent retinal detachment. Accordingly, the complainant underwent the said procedure/T.C.Cryo at Sankara Nethralaya without any complication. He was advised to return back for the cataract surgery in October 1996 during Puja holidays. However, after his return to Calcutta, the complainant under the advice of his client consulted OP No.1- Opthalmologist and being impressed with his advice, decided to undergo surgical procedure for cataract removal and intra ocular lens implant at the hands of OP No. 1 Opthalmologist. After requisite tests, the surgery was scheduled at OP No. 2 Nursing Home on the morning of 15.10.1996. Accordingly, complainant got admitted in OP No.2 Nursing Home in the evening of 14.10.1996 and underwent a cataract removal surgery and intra ocular lens implant at the hands of OP No.1 in the morning of 15.10.1996. After his stay for about 24 hours in the nursing home, he was discharged from the OP No. 2-nursing home in the morning of 16.10.1996. After reaching home in the evening, the complainant felt discomfort, headache, vomiting, etc., for which the relations of the complainant contacted OP No. 1 who going by the above noted clinical symptoms reported to him told them that complainant was suffering from acidity and indigestion and, therefore, advised the complainant/relations to consult general physician by the name of Dr.S.K.Neogi. Accordingly, complainant consulted the said physician who prescribed some antacids and injection like calmpose. Even after taking the said treatment, the condition of the complainant did not improve and he continued to have pain in his operated eye and headache, etc. Therefore, OP No. 1 was again contacted and was requested to see the complainant at his residence but OP No. 1 did not visit. On the morning of 18.10.1996 complainant saw OP No.1 at his clinic and after examination OP No. 1 noticed that complainant's operated eye was infected and he was suffering from Endophthalmitis and, therefore, advised the complainant to undergo emergency vitractomy of his right eye at Sankara Nethralaya. On the same evening, the complainant flew to Chennai and after reaching there, the complainant contacted Sankara Nethralaya authorities and was taken to the emergency ward where he was examined by the doctors including senior doctors/specialist and it was noticed that the complainant was having pain, redness, watering and decreased vision in the right eye for two days. He was diagnosed to have post operative endophthalmitis. As the Intraocular pressure in the right eye of the complainant was found to be on higher side, complainant was advised ultrasound which showed plenty of low reflective echoes in the vitreous cavity with incomplete posterior vitreous detachment. However, retina was found to be attached. Complainantwas given intravitreal vancomycin and Amikacim along with decadron besides certain other antibiotics, steroids and drugs. On 23.10.1996 vitrectomy with intraocular lens removal procedure was performed on the complainant under general anaesthesia. The vitreous sample sent during the surgery showed gram negative bacilli growing on culture on the first post operative day which was identified as Pseudomonos aeruginosa. On 6.11.1996 second procedure vitreous lavage was performed and thereafter the complainant was discharged from the hospital. However by that time the complainant had lost his right eye, rendering him a visually impaired person as a result of which the complainant has suffered pecuniary and non-pecuniary damages.

(3.) Now we come to what can be termed as instances of medical negligence or deficiency in service as put forth by the complainant in the said treatment at the hands of OP No. 1 at the nursing home of OP No. 2 or post surgical management of his right eye. Though in his complaint, the complainant has tried to paint a picture that under the advice of his client he consulted OP No. 1 and had also agreed to get the procedure done by him under certain misrepresentation/belief about the competence and expertise of OP No. 1 but perhaps in his heart he was not convinced of the same. We must reject this plea of the complainant at the outset because to get the procedure through OP No. 1 was the voluntary decision of the complainant, may be based on the advice of certain client or his own belief. In any case the complainant has made no grievance either about the qualification, skill or expertise of OP No. 1 in conducting such a procedure. Learned Counsel for the appellant also did not raise even a finger in that behalf.