In medical negligence cases, the burden of proof lies with the plaintiff to establish negligence through expert testimony, and mere prescription of a drug does not constitute negligence without evidence of a breach of duty.

ORDER :

1. The present First Appeal is filed by the appellant under Section 96 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as ‘the Act’).

2. Heard learned advocate Ms. Devanshi K. Patel for learned advocate Mr. Jigar P. Raval for appellant and learned advocate Mr. Rituraj M. Meena for the respondent No.2. Though served, none appeared for respondent No.1.

3. The plaintiff-appellant filed Civil Suit No.708 of 1988 before the City Civil and Sessions Court, Ahmedabad for a relief of damages of Rs.2,70,000/- from the respondents-defendants. The learned City Civil and Sessions Court, Ahmedabad dismissed the suit vide judgment and decree dated 31.01.2003.

3.1. Being aggrieved and dissatisfied with the judgment and decree, the present appellant is before this Court.

4. The brief facts of the case are as under:-

4.1 The plaintiff was an employee of defendant No.2. As plaintiff suffered some eye problem in the month of August, 1986, plaintiff approached defendant No.1, who is working as a Senior Medical Officer in the dispensary run by defendant No.2. On consultation, defendant No.1 prescribed “Zinco-Sulpha” (hereinafter to be referred as ‘the eye drops’) to the plaintiff on 29.08.1986. As the plaintiff complained about more trouble in his right eye, consulted defendant No.1 on 02.09.1986. Dr. Anterkar examined the plaintiff and advised him to consult ophthalmologist Dr. Bavishi at Ahmedabad. The plaintiff was referred to Nagri Hospital at Ahmedabad, where on 19.09.1986, right eye of the plaintiff was operated and right eye was removed. The suit was filed by the plaintiff for recovery of the damages of Rs.2,70,000/- on account of negligence of defendant No.1. Defendant No.1 appeared and filed Written Statement at Exhibit-14 and denied all the allegations levelled against him. Defendant No.2 adopted the Written Statement of the Defendant No.1.

4.2 Issues were framed by the learned trial Court at Exhibit 16, which are as under:-

“1. Whether the plaintiff proves that defendant No.1 was negligent in providing medical treatment as ophthalmologist to him?

2. Whether the plaintiff proves that the defendant No.1 was not qualified to treat the eye sickness and in spite of that had prescribed medicine for the eyes of the plaintiff?

3. Whether the plaintiff proves that on account of faulty diagnosis and also on account of negligence shown by the defendant No.1, he has lost vision of one eye?

4. Whether the defendant No.1 is liable to pay compensation to the plaintiff?

5. Whether the defendant No.2 is vicariously liable to pay the compensation to the plaintiff? If yes, what amount?

6. What order and decree?”

4.3 The plaintiff examined himself at Exhibit-25, but did not produce any documentary evidence in support of his case. The defendant No.1 examined himself at Exhibit-28. Defendant also examined another witness, namely, Umeshchandra R. Jain at Exhibit-38. After considering oral as well as documentary evidence, the suit came to be dismissed on 31.01.2003.

5. Learned advocate for the appellant submitted that the plaintiff was an employee of defendant No.2 and had a degree of Engineer. In the month of August, 1986, plaintiff suffered some eye problem and approached the defendant No.1, who is working as a Medical Officer with defendant No.2. The plaintiff was suffering from pain and watering from his right eye and therefore, the defendant No.1 prescribed “Zinco Sulpha” eye drop to the plaintiff. However, the problem continued and increased. Resultantly, the plaintiff again visited defendant No.1 on 30.08.1986. Defendant No.1 directed plaintiff to continue with the same treatment which was given on 29.08.1986. On increasing the problem, on 02.09.1986, defendant No.1 was again approached by the plaintiff. However, in absence of defendant No.1, Dr. Anterkar examined plaintiff and advised the plaintiff to approach the ophthalmologist Dr. Bavishi, Ahmedabad. Upon such advice, when plaintiff approached Dr. Bavishi who is also a penal Doctor