I.AHMED vs SUMITRA BISWAS

THIS is an appeal by the O.P. against the order of the Forum dated 24.4.2000 directing payment of compensation of Rs. 1,50,000/- to the complainant together with interest @ 12% p.a.

BRIEFLY stated the fact of the case is the petitioner, a young unmarried lady approached the O.P., an Eye Surgeon with complication in her left eye. The petitioner was referred to the said Eye Surgeon by one Dr. Ajit Sarkar of Nabadwip. On examination, O.P. fixed 21.8.1998 as the date for operation of her left eye and advised her admission in Central Nursing Home, Krishnanagar. On admission, her left eye was operated upon on the said date i.e. on 21.8.1998 at about 9.00 p.m. Following the Surgical Operation, the left eye of the complainant got damaged and there was profused bleeding. On 23.8.1998 at about 10.00 a.m. the complainant was discharged from the said Nursing Home and she took admission in S.S.K.M. Hospital and was detained there for 20 days for treatment. Subsequently, she was also treated at B.R. Singh Hospital. She also received treatment from Sankar Netralaya, Madras, after being discharged from B.R. Singh Hospital. It has been alleged that because of negligence and carelessness on the part of the O.P. her left eye has been totally damaged and she lost her vision of the left eye for ever. Accordingly, she approached the Forum claiming compensation. The case was contested by the O.P. by filing a written version wherein the allegations of the complainant were denied and disputed. According to the O.P., the operation was done after routine pre-operative checks and tests. There was rapid rise of intra-ocular pressure and lens was being pushed up. Several medicines were administered to reduce the said pressure but unfortunately the lens nucleus popped out and vitreous followed and it was a case of impending expulsive haemorrhage. According to the O.P. every precaution was taken and post-operative care was taken to control the bleeding. The bleeding was controlled on 23.8.1998 when she was advised to consult Vitreous Retinal Expertise and was referred to the Eye Department of S.S.K.M. Hospital. According to him, the incident which occurred is one of the most frightening and serious complications of Cataract Surgery and it is very rare and it happens only on few occasions.

On consideration of oral and documentary evidence the Forum found that negligence on the part of the Eye Surgeon was proved beyond all reasonable doubts. Accordingly, the Forum awarded compensation to the tune of Rs. 1,50,000/- upon computation of the income of the complainant and on consideration of the mental agony and financial stringency of the complainant.

FEELING aggrieved thereby the Eye Surgeon who was the O.P. before the Forum has appealed. According to the appellant, the Forum was wrong in observing that the operation was done in hot-haste and mechanically without application of medical mind and without advising the patient to get all preliminary pre-operative investigations done. Learned Counsel appearing for the appellant submits that the Forum failed to take notice of the fact with all pre-operative investigations were done and the operation was not done in hot-haste. In this connection he has drawn our attention to the prescriptions given by the Eye Surgeon. It appears therefrom (Annexure "A") that the complainant was first examined by the Eye Surgeon on 19.5.1998. She was advised to undergo some routine for past-operative investigations. Again on 7.6.1998 the complainant was examined by the Surgeon. On 9.8.1998 the surgeon upon examination of the patient advised admission in the Nursing Home and fixed 21.8.1998 as the date for operation. The notings in the prescription (Annexure "A") clearly show that the Doctor prescribed pre-operative tests and fixed the date for operation after those tests were done. There is no dispute that the operation was done on 21.8.1998. According to the surgeon it is a case of impending expulsive haemorrhage and the only treatment is vitreous retinal surgery. The surgeon has referred her to SSKM Hospital for better management and treatment. On 23.8.1998 she was admitted there and was detained there for 20 days for treatment. Subsequently, she got treatment at B.R. Singh Hospital and lastly at Sankar Netralaya but none could care the ailment nor restore her vision of the left eye. There is no opinion of the attending Surgeons attached to in any of the institutions referred to above regarding about the negligence of the present O.P. in the matter of conducting surgery. The learned Counsel for the appellant submits that the Forum was not justified in coming to the conclusion that none of the Doctors would offer their opinion in writing against the answering Doctor of the present case. He submits that this assumption of the Forum is totally unfortunate and unjustified. The complainant has examined one Dr. Bimal Kr. Hore (P.W. 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. We notice that in this case the appellant has 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. Learned Counsel for the appellant has drawn our attention to the notings on the left hand side of the prescription (Annexure "A") 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 O.P. was guilty of negligence. He did not, in our view, 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 we find that 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 we find substance in the appeal which is hereby allowed and the judgment of the Forum is set aside and the complaint petition be dismissed on contest but without any cost. Appeal allowed.