Oral Order: (Per Honble Justice D. Appa Rao, President)
1) This is an appeal preferred by the opposite party doctor of an eye hospital against the order of the Dist. Forum directing him to pay Rs. 2,20,000/- together with costs of Rs. 2,000/-.
2) Originally on the complaint filed by the complainant the Dist. Forum by its order dt. 14.10.2008 granted the above compensation for medical negligence against which the appellant preferred FA No. 1557/2008 and this Commission by order dt. 25.5.2010 allowed the appeal dismissing the complaint. As against the said order, the National Commission on the revision preferred by the complainant in RP No. 2861 of 2011 remanded the matter and the National Commission by its order dt. 22.7.2012 opined that this Commission did not set-aside the findings of the Dist. Forum with regard to Ex. B1 which the Dist. Forum opined that it was fabricated, and directed this Commission to decide it afresh in accordance with law.
3) In the light of remand order, we heard both sides. The parties are described as arrayed in the complaint for felicity of expression and avoid confusion.
4) The case of the complainant in brief is that he approached the opposite party doctor an ophthalmologist of Sarojini Eye Hospital (herein after called âthe doctor) on 29.11.2007 when had been suffering from a problem in the right eye. The doctor after examining him opined that he had developed cataract in the right eye and advised a minor operation for removing the cataract and inserting a lense for clear vision. On that he gave consent. He admitted him on the same day, conducted surgery for which he charged Rs. 5,000/-. On the next day i.e., on 30.11.2007 he was discharged after prescribing some medicines. Though he has been following the advise, however on 3.12.2007 water and blood was coming out from the operated site. Immediately, he approached the doctor who in turn opined that it was a minor problem and could be cured with medicines, and he continued up till 7.12.2007, however, he could not get relief on the other hand it was worsening.
When he could not cure the problem, the doctor himself referred him to Medi-vision Hospital, Hyderabad where Dr. K. Ravi Kumar Reddy after examining him opined that his right eye was totally damaged on the ground that lense was not properly inserted due to which eye ball was cut. Though he stated that there was possibility of regaining the vision, however, it could not be regained to normalcy. On his consent second operation was conducted however to no avail. Ultimately he lost his vision. He spent about Rs. 10,000/- towards operation and other expenses. This was all due to negligence of opposite party doctor. He was hardly aged about 31 years. He was running kirana business to eke out his livelihood. Due to his poor vision he suffered a lot of mental agony and was unable to run his business properly. When he reported the matter to caste elders they convened a meeting on 27.12.2008 wherein the doctor admitted that due to his acts he lost his vision and prepared to compensate. So saying he took away all the original documents. Later he changed his mind by stating that he could do whatever he could and thrown him out from the hospital. Therefore alleging medical negligence on the part of opposite party doctor he filed the complaint claiming Rs. 4,80,000/- towards damage to the right eye together with compensation of Rs. 10,000/- towards mental agony and costs.
5) The appellant doctor resisted the case. While admitting that the complainant was a kirana merchant and that he approached him on 29.11.2007 with a problem on his right eye and on examining him he advised him to undergo cataract operation for which he agreed. Accordingly he conducted surgery on 29.11.2007 in his hospital and was discharged on 30.11.2007 after prescribing certain medicines. He denied that the complainant had taken the medicines as prescribed by him. He was negligent in protecting his right eye. On 3.12.2007 he complained pain in the right eye and after examining, he found even on the next day of operation he went to his business activities and thus the problem had arisen. He was careless. Despite the said fact that he treated him, and later referred him to Medi-vision, Masab Tank, Hyderabad . The complainant appeared to have contacted one Dr. K. Ravi Kumar Reddy who conducted second operation. On 31.12.2007 the complainant and his family members along with some caste elders requested him to help the complainant. Having regard to the fact that he being from the same caste and on humanitarian grounds paid Rs. 95,000/-. The complainant executed a document on 31.12.2007 acknowledging receipt of amount towards full and final settlement of the claim. He had undertaken not to file any civil or criminal cases against him. He was not responsible for loss of eye sight. He denied that the complainant had suffered mental agony and also loss in business. Contrary to the agreement, he filed the complaint claiming compensation with fictitious ground, and therefore prayed for dismissal of the complaint with costs.
6) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A3 marked while the opposite party filed his affidavit evidence and that of attestars of Ex. B1 Y. Venkata Ramana, Y. Dayakar and N. Krishnaiah mentioning identical facts that as per the settlement made by the caste elders the opposite party doctor paid Rs. 95,000/- on 31.12.2007 and that the complainant had executed Ex. B1 on the very same day.
7) The Dist. Forum after considering the evidence placed on record opined that there was negligence on the part of doctor in conducting the cataract operation, and that the signature on Ex. B1 was a forgery. In fact it does not contain the signature of the doctor. Holding that no credibility could be given to Ex. B1 and in the light of the fact that the complainant had lost his eye sight due to negligence of the doctor in performing the operation granted Rs. 2,00,000/- towards permanent loss of eye sight and Rs. 20,000/- towards mental agony and costs of Rs. 2,000/-.
8) Aggrieved by the said order , the opposite party doctor preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that there was no medical evidence to show that he was guilty of medical negligence, and that there was no mention that there was any negligence while conducting the operation in Ex. A3 discharge summary issued by Medi-vision Eye Care Centre, Hyderabad. From 29.11.2007 to 6.12.007 his eyes were normal. The infection that was developed as evident from Ex. A3 was due to improper precautions taken by the complainant. The complainant did not file the affidavit of Dr. K. Ravi Kumar Reddy who conducted the second operation mentioning that loss of eye sight was due to the operation conducted by him. That apart, the Dist. Forum failed to see that the complainant did not plead that signature on Ex. B1 was a forgery. There was no evidence to show that there was deficiency in service or there was negligence in the surgery conducted by him, and therefore prayed that the appeal be allowed by dismissing the complaint.
9) The points that arise for consideration are :
i. Whether there was any negligence on the part of doctor in conducting the surgery and treatment?
ii. Whether the settlement under Ex. B1 is true, valid and binding?
iii. To what relief?
10) This is a case of total loss of eye sight in one eye on the operation conducted by opposite party eye surgeon. When the complainant complained loss of vision, immediately, he himself referred to another surgeon, who confirmed it was post traumatic injury. The doctor did not explain for this nor controverted when complainant alleged that there was an injury when IOL was implanted. It is ex-facie negligence. In cases of this nature putting the complainant to prove as to the negligence of the doctor is against principles of natural justice. He could not have explained the niceties of surgeon, and outcome of his loss of eye sight. Since it will be within the knowledge of the doctor, he had to explain by giving evidence, if necessary by examining the doctor to whom he referred to. The principles of appreciation of evidence cannot be shackled by formulating guidelines. They depend on facts of each case.
11) It is an undisputed fact that the complainant a kirana merchant in a village aged about 31 years approached the appellant doctor when he suffered some problem in his right eye. The doctor examined him on 29.11.2007 performed cataract operation and discharged him on 30.11.2007 after inserting IOL lense vide Ex. A1 discharge ticket. It is also not in dispute that on 3.12.2007 just three days after operation he again came to the doctor complaining that he was getting pain, and water and blood was oozing from the operated site. He administered medicine, however, as there was no relief he himself referred him to Medi-Vision Eye and Health Care Centre, Masab Tank, Hyderabad evidenced from his own endorsement on Ex. A1 obviously as he could not contain the infection which had already set in since he referred to the hospital, it does not matter who the doctor is. The doctors at Medi-vision after examining him on the very same day i.e., on 8.12.2007 noted âcomplaint of swelling, reddishness and pain on the right eye. There is a categorical mention that it was a âpost-operative Endophthalmitis. Ultrasound scan was taken. They found retinal detachment.
12) In the complaint the complainant had categorically stated that when he approached Dr. K. Ravi Kumar Reddy of Medi-vision when the appellant doctor had referred him post-operatively, he informed that:
âthe right eye was totally damaged since the lense was not properly inserted, due to which the eye ball was cutting as such there is possibility of regaining of vision. However, he will try to rectify the injury by way of operation, further he clearly stated that he cannot give any assurance with regard to regaining the vision as normal.â Despite the fact that Dr. K. Ravi Kumar Reddy had conducted second operation he could not regain his eye sight. The doctors had categorically stated âpost- operative Endophthalmitisâ. Importantly this allegation was not controverted by the appellant doctor in his counter. Without controverting this, the explanation by the doctor was that the complainant lost the eye sight due to his own negligence and carelessness in not following the advice given by him. He did not give any explanation nor explained the procedure while conducting the operation and the reasons for post-operative complications. He ought to have explained not only by controverting the allegation made by the complainant but also by giving explanation as to how and why his operation was a failure. Since he had referred the patient to another doctor, he ought to have examined the said doctor in order to prove that there was no negligence on his part while conducting the operation, more so, when he did not dispute the fact alleged by the complainant that the operation was failed due to his negligence. He ought to have explained the reason for referring him to another surgeon. The complainant has ex-facie proved the negligence of the doctor. He is a better witness/person to explain, as he conducted the operation. The facts are within his knowledge. For the operation conducted by the doctor, the complainant cannot be made to explain. These facts will be within his knowledge. He having referred to the doctor at Medivision, Hyderabad - the complainant cannot be made to examine him. This is unjust. The respondent doctor intends to get over explanation for post-operative injury of the eye.
13) The learned counsel for the appellant, even when the second doctor who conducted the surgery confirmed that it was âpost- operative Endophthalmitisâ contended that despite advances in microsurgical techniques and use of modern aseptic methods, endophthalmitis continues to haunt every intraocular lens (IOL) surgeon. It continues to be one of the most challenging problems in ophthalmology as it can lead to catastrophic sequelae. Pseudophakic endophthalmitis may be defined as intraocular infection attributable to cataract surgery and IOL implantation. For this he referred to a book on âComplications of Intraocular Lens Implantation by Renuka Srinivasan, published by Japee Brothers Medial Publishers P. Ltd., in Chapter 7 under the heading âPseudophakic Endophthalmitis it was mentioned âAlthough any person undergoing IOL surgery can be at risk of developing endophthalmitis theoretically, certain pre-operative conditions and operative complications pre-dispose the eye to infection. The following are the pseudophakic, endophthalamitis, pre-dispose factors:
Pre-operative                    Intra-operative
External eye infection         Excess manipulations
Systemic infection            Contaminated solutions
Diabetes mellitus              PCR
                                      Vitreous loss
                                      Sutured IOLs
Pre-disposing factors are of three types namely (i) Pre-operative (ii) Operative and (iii) post-operative.
In Principles and Practice of Opthalmology by Gholam A. Peyman, Donald R. Sanders and Morton F. Goldberg published by Japee Brothers it was mentioned :
Endophthalmitis. The true incidence of endophthalmitis after cataract extraction and other intraocular procedures is difficult to ascertain because aqueous or vitreous cultures have not always been obtained in suspected cases. Also because it is a rare compilation, a large series must be collected to provide meaningful data. In addition variation in surgical technique, scrupulous asepsis and use of preoperative, operative, and postoperative antibiotics affect incidence of post-operative. Operative and postoperative antibiotics affect incidence rates. The present estimated incidence of postoperative bacterial endophthalmitis is between 0.2 and 0.3 per cent.
The Principal sources of infection are (1) airborne bacteria: (2) Contaminated solutions and medications; (3) tissue sources, including the surgeons hands and the patients eyelids and conjunctiva: and (4) object sources including instruments. drapes and sutures.
Although the incidence of intraocular infection after cataract surgery has sharply declined during the past 35 years, it still is one of the most catastrophic complications of surgery. Although newer antibiotic agents combat heretofore highly resistant organisms, numerous instances of fulminating infections that defy all therapeutic efforts still occur.
The doctor did not examine himself to rule out the above possibilities while conducting the surgery. The burden is on him to prove that infection could not have been caused at operative or post-operative stages. He did not find out as to the exact infection that was caused to him.
In Cataract Surgery and its Complications by Norman S. Jafee, Mark S. Jafee and Gary F. Jafee published by B.I. Publications the authors categorically noted that :
Some surgeons may also have a natural reluctance to report postoperative infections. Moreover, because the incidence of infection is so low, a series is meaningless unless it includes a great number of cases. A surgeon may perform several hundred cataract extractions without a single postoperative infection. However, because of contamination of a solution used during surgery, several disasters may occur in one day, causing a major change in statistics. Thus a series such as that reported in which each surgeon reported at least 500 cases and most more than 2000, is more meaningful.
The ophthalmic surgeon must not be lulled into complacency by the decreasing incidence of postoperative bacterial infection. There is an increasing tendency to inject a variety of materials, any of which may be contaminated, into the anterior chamber during surgery. Moreover, some infection such as fungal infections, penicillin resistant Staphylococcus aureus, epidermidis and Proteus species may actually be on the rise â¦..
The types of operation performed has some bearing on the incidence of postoperative bacterial infection. Operative loss of vitreous and excessive intraocular manipulation probably increases the incidence. In addition, the risk of infection may be greater after extracapsular extraction than after intra-capsular extraction. This situation refers to unplanned extra-capsular cataract extraction and probably is unrelated to contemporary methods of extra-capsular cataract extraction. However, we repeat that reports making these claims may be discussing aseptic uveitis and not bacterial endophthalmitis.
Since the doctor claimed to be an expert in this sort of operation and evidently it was a post-operative complication, he must explain by referring to his affidavit or in his pleadings.
14) At the cost of repetition, we may state that he could not explain about it, let alone refuting the averments made by the complainant in this regard. When he could not explain, the probable reason for the infection, and he having found that he could not treat it, referred him to another doctor who performed the second surgery had categorically stated that it was a post-operative endophthalamitis, it was for him to lead evidence to over-rule said infection was not caused either during operative or post-operative surgery.
15) The learned counsel for the appellant doctor relied the following decisions of National Commission in Ms. Rohini Devi Vs. Dr. H. S. Chudavat reported in 2001 (3) CPR 172 (NC) and Kailash Kumar Sharma Vs. Dr. Hari Charan Mathur reported in 1997 (2) CPR 126. Those were the cases where the patient did not visit the doctor for taking follow up treatment. That was also a case where the doctor gave evidence about the procedure followed by him for IOL implantation, moreover, the implantations were removable after eight months. The facts however in this case are entirely different. Ex-facie, the complainant could prove that there was negligence on the part of doctor while inserting IOL, and that there was post-operative Endophthalamitis.
16) When he contends that it was a common infection he ought to have taken all precautions to see that the patient did not contact the infection when he had conducted the surgery. He should see that it was immediately treated. The fact remains that when the complainant had lost his eye sight, the question of examining an expert by the complainant will not arise. We repeat that the doctor was negligent in exercising proper care while conducting the operation but for which the complainant would not have contacted infection. At any rate, he could not over rule the infection either at the time of operation or post-operatively which we have mentioned earlier. When the doctor himself could not deny any of the averments made by the complainant in regard to negligence attributable to him, and the very doctor to whom he referred opined that there was failure of operation causing total loss of eye sight, we are of the opinion that there was negligence on the part of appellant doctor while treating the patient. He became blind in one eye, when he is hardly aged 31 years. He has to endure this throughout his life.
17) The doctor incidentally raised a plea that there was a compromise before the caste elders, and towards full and final settlement, he paid Rs. 95,000/- evidenced by Ex. B1 compromise deed. This was contested by the complainant.
In fact the complainant has categorically stated in his complaint at para 9 in the following words:
âIt is submitted that the matter was reported to the caste elders, upon which they convened a meeting on 27.12.2008 in the said meeting the opposite party has agreed that due to his act the complainant has lost his vision. As such he is prepared to pay the compensation and took away all the original documents such as original discharge ticket. Later he totally changed his version and stating whatever you want to do you can and thrown out the complainant from his hospital.â
Curiously this was not controverted in written version. Nothing was mentioned in regard to execution of Ex. B1. The complainant repeated the very same facts in his affidavit evidence. He did neither admit about execution of Ex. B1 nor deny.
18) The learned counsel for the complainant no doubt contended across the bar that the signature of the complainant does not tally. It was not his signature on Ex. B1. Importantly, he contends that when Ex. B1 was type-written , and a mention was made that a receipt was issued acknowledging payment of Rs. 95,000/-, and when the said receipt was not filed, it cannot be said that the complainant has received the same towards full and final settlement. At any rate, the Dist. Forum cannot go into the said question. The only question that could be determined is whether there was negligence on the part of the appellant doctor. The question whether the agreement was true or not could not be considered as it requires an elaborate trial. The parties have to be examined and that they should be subject to cross-examination. We may state that both parties have taken plea of Estoppel. The complainant contends that having mentioned that a receipt was taken and the receipt having been not filed Ex. B1 cannot be relied holding that it was towards full and final settlement of the claim. The learned counsel for the doctor equally contends that the complainant having executed Ex. B1 he is estopped from contending that he was entitled to some more amount. Estoppel against estoppel sets matter at large.
19) The doctor no doubt filed the affidavits of attestars of Ex. B1, the Dist. Forum after going through the record opined:
âAs per Section 73 of the Indian Evidence Act, the court (Forum) can compare the disputed signature with admitted signature on a document to come to a just conclusion as to the genuineness. In that way, when this Forum has compared the disputed signature of the complainant on Ex. B1 with the admitted signatures on the vakalath and complaint filed into Forum, this Forum has no hesitation to hold that they are not in the hand of one person. There is no similarity in any respect between the disputed signature on Ex. B1 purported to have signed by the complainant and his admitted signatures on other documents. Therefore, we are of the opinion that Ex. B1 was a fabricated document with forged signature of the complainant. It is also worth to mention that it is but natural when an agreement is entered by two parties, it contains the signatures of both the parties, but surprisingly Ex. B1 does not contain the signature of the opposite party as a party to the agreement, and that leaves there is any amount of doubt on the genuineness of Ex. B1 document. Therefore, we decline to give credibility to Ex. B1 document, and hence the inference is that the complainant did not sign on Ex. B1, and no reliance can be placed on the said document.
This is without any pleading. The complainant did not dispute his signature on Ex. B1. He explained it in a way in para-9 of his complaint, which we have excerpted. At the cost of repetition, we may state that the same was not controverted. The doctor could not explain the reason for not taking any receipt, which was contemplated in Ex. B1 to show payment. The complainant can always show that the amount cannot be taken as full and final payment, even assuming the same to be true recently the Honble Supreme Court in R.L. Kalathia and Company Vs. State of Gujarat reported in (2012) 2 SCC 400 held that:
âeven after execution of full and final discharge voucher/receipt by one of the parties, if the said party is able to establish that he is entitled to further amount for which he is having adequate material, he is not barred from claiming such amount merely because of acceptance of the final bill by mentioning âwithout prejudice or by issuing âno due certificate.
That was a case where the contractor after issuing no due certificate claimed some more amounts on the ground that he was entitled to some amount. In that context the Honble Supreme Court opined as above. The very same observation holds goods in the present case also. Despite the fact that the complainant entered into settlement, if he could prove that he was entitled to some more amounts, more so, when he lost total eye sight, and became blind in one eye he was entitled to some more compensation, if he proves that the amount arrived at did not represent the total compensation. We agree that the amount awarded is too low.
20) We may state that the when he claimed Rs. 4,80,000/- the Dist. Forum after considering the fact that he had lost total eye sight in one eye awarded an amount of Rs. 2,00,000/- towards loss of eye sight and Rs. 20,000/- towards mental agony. Even if amount taken under Ex. B1 was paid the compensation awarded does not represent adequate compensation. However, the complainant did not prefer any appeal against the adequacy or inadequacy of compensation granted to him. In the light of the fact that he had already lost eye sight, we are of the opinion that the compensation awarded was adequate. The appellant doctor is not entitled to set off the amount mentioned in Ex. B1 from out of the compensation awarded by the Dist. Forum. We do not see any merits in the appeal.
21) In the result the appeal is dismissed with costs computed at Rs. 5,000/-. Time for compliance four weeks.