MADHUSUDAN N KUMBHAREOSWAL Vs. BHERULAL BHIMAJI OSWAL

JUDGEMENT

(1.) These two cross revision petitions have been filed against the impugned order dated 26.11.2015 passed in F.A. No. A/05/2337 by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short, 'State Commission') whereby the State Commission allowed the appeal, by setting aside the order of the District Consumer Disputes Redressal Forum, Pune (for short, 'District Forum').

(2.) For the convenience, facts are drawn from Revision Petition No. 768 of 2016. The facts are that on 11.1.1999 Complainant Bherulal Bhimaji Oswala( herein referred as 'Patient' resident of Lonavala had developed cataract in his right eye. He approached OP/Dr. Madhusudan N. Kumbhare at his clinic in Pune. OP after examination advised the patient for removal of cataract in the right eye. The cataract operation was performed on 19.1.1999 at 8.00 p.m. in Sushrut Hospital, Pune and patient was discharged at 9.15 p.m. During night patient stayed in Pune and on the next day i.e. 20.01.1999 visited OP with complaint of severe pain in the operated eye. As stated by the complainant - OP removed the bandage of operated eye and applied a fresh bandage, prescribed medicines Tablet Betnesol, Fluer Eye drops and gave black goggles and called for check-up on 23.1.1999. The complainant returned to his place at Lonavala on 20.1.1999,but the pain in eye got increased with severe headache. On 23.01.1999, the complainant with his wife and son visited the clinic of OP. OP removed the bandage and examined the operated right eye. Complainant was unable to open the operated eye because of oozing of sticky material. The entire bandage was soaked with it. The OP prescribed medicines like Tab. Cifran CT, Tab. Combiflam, Nebracin DM, and Oculon eye drops. OP assured the complainant that the operation was successful and his pain would subside and vision would be restored. The patient was called for follow up on 25.01.1999. But on 24.01.1999 complainant became restless because of severe pain and headache. There was constant oozing of sticky material from the operated eye. Therefore, on the next day complainant rushed immediately to the OP who prescribed some medicines and painkillers only and assured that normal vision would be restored soon. However, condition of the patient went on deteriorating further and the pain got worsened. On 26.1.1999 patient along with his son went to OP, who prescribed some medicines and called the patient on the next date. On 27.1.1999, the OP cleaned the operated eye with cotton swab and assured that the eyesight will be restored within a couple of days. The complainant alleged that on 27.1.1999 for the first time, OP had advised blood sugar check-up, which was never conducted prior to the operation. Thus, it was the deficiency on the part of OP, who failed to complete the mandatory requirements before the cataract surgery. The condition of patient did not improve, patient had excruciating pain in the operated eye with headache, therefore, for 2nd opinion patient with his son visited one eye surgeon, Dr. Chitra Khare in Pune, who after examination diagnosed it as a case of Endophthalmitis with Corneal Abscess and advised for evisceration of right eye to avoid any damage to the brain. The complainant and his family members shocked to hear the opinion of Dr. Chitra Khare. For re-confirmation, the complainant had consulted Dr. Nitin Prabhudesai, who had also confirmed that the operated eye was completely damaged and refused to admit patient in his hospital. As patient could not get admission in any hospital, as a last resort, he approached the Military Hospital (AFMC) on 29.01.1999; wherein the doctors diagnosed it as a case of Endophthalmitis. The complainant got admitted in Military Hospital on 29.01.1999 under Col. P. G. Dash and underwent an operation, however, the doctors succeeded in retaining the eyeball, without a vision. Complainant was discharged from Military Hospital on 19.02.1999. The complainant alleged that it was the deficiency in service and negligence during the treatment which caused loss of his right eye. The complainant filed complaint before the District Forum, Pune.

(3.) The OP filed written version and denied the all allegations. According to OP, he had successfully performed the Cataract surgery on right eye of the patient. After the operation, patient himself has not taken proper care of his right eye. Report of Dr. Chitra Khare did not state that the cataract operation was negligently performed. The complainant has not filed any expert evidence from the doctors at Military Hospital. Even, the discharge summary of Military Hospital did not disclose negligence during operation. Complainant had neither filed a report from Civil Surgeon nor opinion of expert from any other hospital in Pune. The medical record and literature did not confirm negligence of OP during or post-surgical management.