IMPORTANT POINT
Medical Negligence – Doctors should carefully and honestly listen to complaints of patients and try to redress the same – No credible reliance can be put on respondent’s written version which was not supported by enough evidence to discharge him of his liability to exercise due care or to shift liability on appellant.

JUDGMENT :

VIKRAM NATH, J.

1. Leave granted.

2. The instant appeals have been preferred against the judgment dated 20.11.2018 passed by the National Consumer Disputes Redressal Commission¹[“NCDRC”, hereinafter] in Revision Petition No. 768 of 2016 filed by the respondent herein along with Revision Petition No. 2443 of 2016 filed by the appellant herein, whereby NCDRC allowed the respondent’s revision petition, dismissed the appellant’s revision, set aside the order of the State Commission and consequently dismissed the complaint.

3. It would be relevant to state that during the pendency of this appeal, the complainant-appellant had died and the appeal is being prosecuted by his legal heirs who have been brought on record.

4. Brief facts of the matter are that the instant appellant is the original complainant/patient, a resident of Lonavala, who had developed cataract in his right eye and had approached the respondent i.e. the Opposite Party²[“OP”, hereinafter], who is an eye surgeon, at his clinic in Pune on 11.01.1999. The respondent, after examination, advised an operation for removal of cataract in the right eye. The cataract operation was accordingly performed by the respondent at 8.00 pm on 19.01.1999 in Sushrut Hospital and the patient was discharged on the same night itself.

5. The patient stayed in Pune overnight and on the very next day, i.e. on 20.01.1999, visited the respondent-doctor with complaint of severe pain in the operated eye and headache. The respondent changed the bandage of the operated eye, prescribed medicines along with eye drops and gave black glasses. The appellant was called back again on 23.01.1999 for checkup when the appellant, on his visit, complained to the respondent of intense pain in his operated eye. When the respondent-doctor removed the bandage and examined the right eye, the appellant could not even open his eye because of sticky fluid oozing out of his eye. The respondent-doctor replaced the bandages, assured the appellant that the operation was successful and prescribed certain pain killers and eye drops. At this stage, the appellant was also assured that his pain would subside and vision would be restored, and he was called for further checkup on 25.01.1999.

6. However, in the meanwhile, on 24.01.1999, the appellant was undergoing severe pain and headache and finally rushed to the respondent on 25.01.1999 wherein again certain medicines and painkiller tablets were prescribed by the respondent-doctor. As per the complainant, the condition of his eye worsened and the pain became unbearable, as a result of which he went to the respondent-doctor again on 26.01.1999 along with his wife and son. On the said date, the respondent again, after checking the eye, told the appellant that the eye was in good condition and called the appellant on the next day. On 27.01.1999, the respondent cleaned the appellant’s eye with cotton and when the appellant complained that he was unable to see anything, he was reassured by the respondent that his vision will be restored to normal in a few days. It was on the same day that the respondent, for the first time, advised the appellant to conduct the Blood Sugar Level test, which came out to be normal.

7. Even after taking the medicines prescribed by the respondent, the appellant continued to suffer from severe pain in the eye and headache which was getting progressively worse for his bearing. The complainant, on 27.01.1999 itself due to unbearable pain, contacted one Dr. Tasliwal, an eye surgeon from Yerawada, who further referred the appellant to another eye specialist named Dr. Chitra Khare. Dr. Khare checked the appellant’s eye and opinionated that the operated eye was completely damaged and if it is not removed in time, it may lead to further damage to the brain. Shocked on receiving such a medical opinion for the first time in previous couple of days, the appellant and his family hastened to seek a third medical opinion on the matter and contacted Dr. Nitin Prabh