DR. MRS. SUNISHA HENRY USHA MEMORIAL SKIN AND EYE HOSPITAL, NEAR SHAFFER SCHOOL, BILASPUR CHHATISHGARH Vs. RAM KUSHAL DUBEY AND ORS A

JUDGEMENT

(1.) - This revision petition has been filed by petitioner against order dated 15.2.2008 passed by State Commission in Appeal Nos. 181 of 2007 and 213 of 2007- Dr. (Mrs.) Sunisha Henry Vs. Ram Kushal Dubey and Ors. ; by which appeal was dismissed. Brief facts of the case are that complainant/respondent- Ram Kushal Dubey, who was retired Deputy Collector and presently practicing as an Advocate, approached opposite party No. 1/petitioner for cataract operation. Opposite Party No. 1 provide services for ailments of eye along with the help of opposite party No. 2 and opposite party No. 3/respondent No. 2 and 3. On 23.1.2005, OP-2 after check-up directed OP-3 to inject anaesthesia in the eye. As soon as the anesthesia was injected by the OP-3, complainant developed severe pain in the eye and lost vision of his left eye. OP-1 was called and after examining the complainant it was told that there was no vision and high tension has developed and retina was displaced. The surgery was not performed and some medicines and bandage were provided. OPs despite knowing full well that the vision was completely lost falsely assured that the vision will be restored after the bandage is opened. Bandages were opened by the OP-1 after two days and after examination of the eye and consulting the OP-2 telephonically, referred the complainant to Apollo Hospital Bilaspur. OP-1's hospital is not equipped to handle and provide suitable care for such complications. On approaching the Apollo Hospital complainant was told that the retina is displaced and there were only remote chances of restoration of vision that too after expensive operations. On seeing the reports of the Apollo Hospital and consulting the OP-2 again, OP-1 referred the complainant to MGM Eye Institute, Raipur. Despite expensive treatment in the MGM eye Institute, the eye sight of the complainant is completely lost. Alleging deficiency on the part of opposite parties, complainant filed complaint before District Forum. Opposite Party No. 1 resisted complaint and submitted that OP-1 is a practicing Ophthalmologist and obtains specialised services of OP-2 for surgery through PHACO machine and OP-3 is trained Ophthalmic Assistant with 20 years' experience. Complainant was having multiple progressive eye problem for which he was operated 10 years back. On 23.1.2005, complainant was given local anesthesia and was shifted to operation theatre but rise in infra ocular pressure was detected, so, operation was postponed to avoid complications. It was, further, pleaded that OP-3-Hospital is equipped with all basic facilities for administration of anesthesia. Complainant was suffering from Glaucoma and his eye had lost 70-80% of vision even prior to surgery and denying any deficiency on her part, prayed for dismissal of complainant. OP No. 2 and 3 also denied any deficiency on their part and OP-3 specifically pleaded that injection for anesthesia was administered by OP-1 and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint against OP-1 and directed him to pay Rs. 1,50,000.00 as compensation, Rs. 20,000.00 as other expenses and Rs. 5,000.00 as cost of litigation and dismissed complaint against OP-2 and 3. Complainant and OP-1 preferred appeals before State Commission and Learned State Commission vide impugned order, dismissed both appeals against which this revision petition has been filed by the petitioner. During the course of proceedings, respondent No. 1 died and his LRs were taken on record. None appeared for LRs of respondent No. 1 and Respondent No. 2 and 3 in spite of service of notice and they were proceeded ex parte.

(2.) Heard Learned Counsel for the petitioner and perused record. Learned Counsel for the petitioner submitted that Learned State Commission has committed error in dismissing appeal on flimsy grounds contrary to record, hence, revision petition be allowed and impugned order be set aside. Learned State Commission dismissed appeal on the ground that opposite party failed to advice complainant about risks in surgery which amounts to deficiency. Learned Counsel for the petitioner submitted that no such allegation was made in the complaint regarding not advising about risks of surgery and in such circumstances, no deficiency could have been imputed on the part of opposite party. Perusal of complaint reveals that it has nowhere been pleaded in the complaint that opposite party No. 1 did not apprise complainant about risks of surgery. In the absence of any pleading regarding deficiency on the count of not advising complainant about risks of surgery, Learned State Commission committed error in holding opposite party No. 1 as deficient in providing services.

(3.) Learned State Commission further observed that they are in agreement with observations of District Forum that services of opposite party No. 3 were utilised for administering retro bulbar injection. It was, further, observed that it was neither claimed nor established that opposite party No. 3 was competent or qualified for administering retro bulbar injection. On the contrary, perusal of order of District Forum reveals that District Forum nowhere observed that injection was administered by opposite party No. 3 and rather observed that whether it was given by opposite party No. 1 or by opposite party No. 3., opposite party No. 1 is liable for deficiency. Opposite Party No. 3 in its written statement specifically denied that injection was administered by him and pleaded that injection wad administered by opposite party No. 1. Opposite Party No. 1 in its affidavit evidence has specifically stated that she with help of opposite party No. 3 injected local anesthesia to the patient which makes it clear that opposite party No. 1 administered injection and in such circumstances, it appears that District Forum exonerated opposite party No. 3 as he did not administer anesthesia. Learned State Commission committed error in holding opposite party No. 1 deficient in providing service on this ground.