A.K.RAY,MEMBER - (1.) THE District Forum, Purulia by its order dated 19.11.2008 passed in case No. 68 of 2004 allowed the complaint of Sri Rabindra Nath Pal and directed OP No -1 Netaji Eye Hospital, OP No -2 Dr. Joydev Kundu and OP No -3 Dr. Mrs. Usha Varghav to pay a sum of Rs. 6 lakh by way of compensation and Rs. 2,000 as cost of litigation to the complainant within one month from the date of the order failing which interest @ 9 % p.a would accrue till payment. OP Nos. 1 to 3 were jointly and severally liable to pay the aforesaid compensation and cost. The complaint was allowed on contest against OP Nos. 1 and 2 and ex parte against OP No. 3 and dismissed against OP No. 4
(2.) BEING aggrieved by the aforesaid order OP No. -1 Netaji Eye Hospital has preferred an appeal being No. FA/08/492 and OP No. -2 Dr Joydev Kundu has also preferred another appeal against the aforesaid judgment of the Dist. Forum being No. FA/08/485 . Both the appeals arising out of the same order were heard analogously and the instant judgment will accordingly govern both the cases.
(3.) BRIEF facts of the case are that on 1.9.2003 the complainant Sri Rabindra Nath Pal who is the Respondent No. 1 in both the cases was admitted for cataract surgery in his left eye in Netaji Eye Hospital under Dr. Jaydev Kundu. He paid Rs. 5,500 for surgery to the Hospital. Dr. Kundu performed the cataract surgery in his left eye on 2.9.2003 by adopting phacoemulsification procedure. After 70% (approx) of the nucleus (cataract) was removed, a small chunk of nucleus dropped in the vitreous cavity. Due to such drop the incision was enlarged. So instead of foldable lens a rigid single piece PMMA Lens was implanted in the nucleus. The patient was referred to Dr. Mrs. Usha Varghav, on 3.9.2003, respondent No. 3 who was a Vitreoretinal Surgeon. Dr. Varghav was the residential Vitreoretinal Surgeon of the hospital at that time. The patient was however discharged by Dr. Kundu on 3.9.2003 with advice to attend the hospital after 8 days. The patient was again admitted to Netaji Eye Hospital for removal of dropped nuclear fragments. The patient was taken to the OT for necessary surgery on 17.9.2003; but as the machine stopped working during surgery operation was postponed following closure of the parts. The patient was discharged on 18.9.2003. He was re -admitted for the said operation (Vitrectomy ) on 22.9.2003. But the machine was again found defective; the said surgery could not be done. Patient was discharged on 24.9.2003. He was again readmitted on 26.9.2003 for the same surgery. Finally the surgery was done on 27.9.2003 and the patient was discharged from the aforesaid hospital on 29.9.2003. On advice the patient attended the hospital on 9.10.2003 when Dr. Kundu examined him and he noticed that the patient had detachment of retina in his left eye. He was referred to Disha Eye Hospital for management. Dr. Kundu also issued an advice note (Annexure -H of the complaint). He, however went to Nemesis Eye Centre at Kolkata where he was treated by Dr. K.P. Ghosh for his retina detachment in the left eye. The complainant however lost his vision in the left eye permanently. In fact, at the time of operation for removal of nuclear chunk from his left eye by Dr. Usha Varghav, some damage had been done which might have caused retinal detachment of his left eye. Hence the case before the Forum below alleging inter alia that the loss of vision of the left eye was due to gross negligence and improper application of skill and care by OP No. -2 Dr.Joydev Kundu and OP -3 Dr. Mrs Varghav and non -functioning of equipment of machine kept in the nursing home of OP -1/Appellant. OP No. -3 (Dr. Mrs. Varghav) did not appear neither before us at the Commission nor before the Dist. Forum below to contest the case. The case was contested by other OPs i.e 1, 2 and 4 who filed their W.V. separately denying all the material allegations of the complainant. OP No. -1 (Hospital) denied any deficiency in their service for non -functioning of machine. Dr. Joydev Kundu OP No. -2 and Appellant before us in Appeal No. 485/08 appeared before the Forum and denied any liability to pay compensation as he had no fault. According to him he conducted the surgery in the left eye of the patient on 2.9.2003 adopting Phacoemulsification procedure. During operation a small chunk of nucleus dropped in the Vitreous cavity. Pre -operative PCR drop of nucleus is a known complication of Phaco surgery. As he was not a posterior segment surgeon, he referred the patient (Rabindranath Pal) to OP -3 (Dr. Mrs. Varghav) who was an expert in vitreoretinal surgery. He also denied his signature in the discharged certificate. He treated the patient to the best of his skill, knowledge and experience and there was no deficiency in service or negligence on his part in the treatment of the patient. OP No. - 4 , Insurance Company, stated in its W.V. that it being the insurer of the Netaji Eye Hospital, they cover the liability of errors and omissions of medical treatment. As there was no error or omission on the part of the hospital authority the Complainant was not entitled to any relief against this OP.;