The burden of proof for medical negligence lies with the complainant, who must establish negligence through expert evidence and prove it beyond all reasonable doubts.

D.P.S. Choudhary, President—O.P. is the appellant who has preferred the appeal against the order dated 16.4.2003 passed by District Forum, Bhojpur in Complaint Case No. 233/2002 whereby and whereunder the District Forum has allowed the complaint and awarded Rs. 40,000/- as compensation, Rs. 15,000/- as expenses incurred on medicines and Rs. 1,000/- as litigation cost against the appellant-O.P.

2. The brief fact of the case is that complainant had eye problem in his right eye and he came to the hospital-O.P. for treatment. On 16.2.2002 his right eye was operated. It is alleged by the complainant that during the operation his right eye was damaged due to cutting by knife and he felt pain and bleeding started. His eyes was bandaged. On 17.2.2002 and 18.2.2002 the O.P. did not give him the correct picture of his eye but prescribed some medicine but he had no relief and he was having acute pain in the right eye. On complaint the O.P. snatched receipt and cash-memo. Thereafter on 19.2.2002 the complainant went to IGIMS at Patna for treatment. It is alleged that complainant has paid Rs. 3,000/- as cost of operation and Rs. 1,000/- for medicine to the O.P. The contention of the complainant is that while performing the operation on his right eye the O.P. negligently got his eye damaged which amounts to deficiency in his medical service and suppressed this fact and on complaint he snatched the cash-memo, etc.. Thereafter he filed the complaint with the above claim as mentioned above.

3. On notice the O.P. appeared and filed show cause. O.P. admitted that complainant’s right eye was operated in the hospital but denied accepting the amount for operation and medicine as claimed by the complainant. It was also refuted that at the time of operation negligently by knife the right eye of the complainant was damaged. If actually the knife is used in the eye it will damage the entire eye-ball and there will be excessive haemorrhage. The report of the IGIMS where the complainant got him treated subsequently does not found any negligence on the part of the O.P. in performing the operation. The complainant was suffering from diabetes and in that case every operation has a risk factor which was told to the complainant before the operation and all steps were taken by the O.P. to control the diabetes level before the operation. The operation was conducted with all due care and precaution but in many cases the result is not towards O.K. and due to many reasons including rise of diabetes level the eye sight is not restored even after performing the operation efficiently. Therefore, there was no negligence or deficiency in duty on the part of the O.P. There is no expert opinion to hold the O.P. negligent and deficient in duty.

4. After hearing both the parties and considering the papers on record the District Forum found the appellant negligent in his duty and passed the order as detailed above.

5. The learned appellant’s lawyer submitted before us that the District Forum has presumed that since the eye sight was not restored to the complainant after the operation, therefore, it is presumed that it was negligence on the part of the operating surgeon. The District Forum also presumed that after the operation of cataract and lense grafting the eye sight must be restored in one and all cases. This finding arrived at by the District Forum is based on hypothesis and without any evidence and expert. The District Forum has not considered the facts enumerated by the O.P. in which it has been made clear that complainant was suffering from diabetes and in many cases due to rise of sugar level and other associated condition even after implant of lense in the cataract operation the eye sight is not restored. The complainant’s case was under that category. The patient was admitted in the hospital on 30.1.2002 and he was given long treatment for control of the diabetes and only on 16.2.2002 his right eye was operated and I.O.L. was installed and he was treated ti