BHERULAL BHIMAJI OSWAL(D) BY LRS.versusMADHUSUDAN N. KUMBHARE

               [2024] 12 S.C.R. 1875 : 2024 INSC 1035

                  Bherulal Bhimaji Oswal(D) by Lrs.
                                 v.
                     Madhusudan N. Kumbhare
                (Civil Appeal No(s). 14816-14817 of 2024)
                              19 December 2024
               [Vikram Nath* and Prasanna B. Varale, JJ.]


                            Issue for Consideration
       (1) Whether the Respondent was guilty of medical negligence in
       the post-operative care of the Appellant; (2) Whether the Appellant's
       actions (changing his own bandage) contributed to the infection
       and absolved the Respondent of liability.

                                  Headnotes†
       Consumer Protection Act, 1986 – Medical Negligence – Failed
       Cataract Surgery – Loss of Vision – Post-Operative Care –
       Expert Medical Opinion favouring the Appellant considered –
       No evidence available on record to shift the blame to Appellant:
       Held: The Appellant underwent cataract surgery performed by the
       Respondent – Post-surgery, the Appellant visited the Respondent
       five times within a week, reporting severe eye pain, oozing
       pus, headaches, and vision loss – Despite these complaints,
       the Respondent repeatedly re assured the Appellant that the
       surgery was successful and prescribed painkillers – Seeking
       further medical advice, the Appellant consulted two other doctors
       and was admitted to Wanawadi Military Hospital, where he was
       diagnosed with endophthalmitis (a severe eye infection) – Urgent
       surgery was performed to prevent potential brain damage, but the
       Appellant lost complete vision in his right eye – The Appellant filed
       a complaint before the District Consumer Forum, Pune, alleging
       medical negligence and seeking compensation – The District Forum
       dismissed the complaint due to lack of expert evidence – The
       State Consumer Commission of Maharashtra partly allowed the
       appeal, holding the Respondent guilty of medical negligence and
       awarding compensation of Rs. 3,50,000/- – The National Consumer
       Disputes Redressal Commission (NCDRC) reversed the State


* Author
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    Commission's decision, holding that the Appellant had changed his
    own bandage, leading to the infection, and thus, the Respondent
    was not negligent – That the Respondent failed to diagnose and
    treat the infection in the Appellant's eye despite multiple complaints
    of pain and vision loss – This Hon’ble Court rejected the NCDRC's
    finding that the Appellant's actions (changing his own bandage)
    caused the infection, noting that there was no evidence brought
    on record to support this claim – The Court restored the State
    Commission's judgment, directing the Respondent to pay the
    Appellant compensation of Rs. 350,000 within two months, with
    a 12% per annum interest rate applicable in case of default.
    [Paras 6, 8, 9, 15]

    Res-Ipsa-Loquitor – Loss of vision result of medical negligence
    in post-operative care – Corrective steps not undertaken
    causing loss of vision:
    Held: The Appellant's severe post-operative symptoms and the
    Respondent's failure to diagnose or treat the infection indicated
    negligence – Held, that the negligence was evident from the facts
    and that the Respondent failed to detect the infection and clear
    the same in time despite several complaints by the Appellant –
    The infection was diagnosed by the three doctors at the Military
    Hospital, but it was too late by then and the Appellant had to undergo
    evisceration of his right eye leading to loss of vision – This was
    a blatant result of medical negligence by the respondent in post-
    operative care wherein corrective steps could have been taken,
    if the most reasonable and basic skills which were expected from
    the Respondent, were applied – Principle of Res Ipsa Loquitor
    applied. [Paras 18, 23]

                                List of Acts
    Consumer Protection Act, 1986.

                             List of Keywords
    Medical Negligence; Eye surgery; Endophthalmitis; Cataract;
    Expert Medical Opinion.

                            Case Arising From
    CIVIL APPELLATE JURISDICTION: Civil Appeal No(s).
    14816-14817 of 2024
[2024] 12 S.C.R.                                                         1877

     Bherulal Bhimaji Oswal(D) by Lrs. v. Madhusudan N. Kumbhare


      From the Judgment and Order dated 20.11.2018 of the National
      Consumers Disputes Redressal Commission, New Delhi in REVP
      Nos. 768 and 2443 of 2016

                               Appearances for Parties
      Advs. for the Appellant:
      Ms. Pratiksha Sharma, Ramjeet Sharma, Ankit Acharya, Ms. Ritu
      Chaudhary.

                         Judgment/Order of the Supreme Court

                                     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 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 Party,2 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.



1    “NCDRC”, hereinafter
2    “OP”, hereinafter
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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
[2024] 12 S.C.R.                                                       1879

     Bherulal Bhimaji Oswal(D) by Lrs. v. Madhusudan N. Kumbhare



      appellant and his family hastened to seek a third medical opinion
      on the matter and contacted Dr. Nitin Prabhudesai, an eye specialist
      from Pune. After checking the appellant’s eye, Dr. Prabhudesai opined
      that there was a septic infection in the operated eye which has led
      to a complete damage and has to be removed.
8.    Thereafter, the appellant, along with his relatives, ran from post to
      pillar for surgical removal of the infected eye and was finally admitted
      at the Military Hospital at Wanawadi on 29.01.1999 wherein he
      was diagnosed with endophthalmitis. Thereafter, an operation was
      performed for removal of partially extruded IOL through limbal section.
      As a result, doctors from military hospital succeeded in retaining the
      eyeball for cosmetic purposes but the appellant lost his complete
      vision from the right eye.
9.    Aggrieved by the loss of vision, money spent on doctor visits and
      operation and the hardship caused in the entire series of unfortunate
      events, the appellant sent a legal notice, through his Counsel, to the
      Respondent for willful medical negligence and claimed compensation
      to the tune of Rs. 10,00,000/- (Rupees Ten lakhs only). Subsequently,
      the appellant preferred Complaint No. 11 of 2000 before the District
      Consumer Forum, Pune inter alia contending medical negligence
      and praying for compensation of Rs. 3,50,000/- (Rupees Three lakh
      fifty thousand only) for loss of his vision along with special damages
      and interest on the amount.
10. The District Consumer Forum, vide order dated 19.10.2005, dismissed
    the appellant’s complaint mainly on the ground that the appellant
    has not filed any expert evidence or affidavit of Doctors of Military
    Hospital and has, thus, failed to prove that the respondent was
    negligent while performing the operation of the right eye.
11. Aggrieved by the said order, the appellant preferred an appeal before
    the State Consumer Commission of Maharashtra,3 being Appeal
    No. 2337 of 2005 wherein during the course of the proceedings in
    the appeal, the appellant’s Counsel had called for the opinion of
    Dr. Bivash Kumar Das, an ophthalmologist and his written opinion
    was placed on record before the State Commission and has been
    produced before us as well.


3    State Commission
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12. The State Commission, vide order dated 26.11.2015, partly allowed
    the appellant’s appeal and set aside the District Forum’s order. The
    State Commission observed that the respondent-doctor filed his
    reply dated 22.10.2002 without any case papers and the said case
    papers were filed only at the appellate stage, to corroborate the
    written version, along with an affidavit dated 15.04.2006. Further,
    it was specifically noted by the State Commission that though the
    case papers are prepared after filing the written version, there are
    contradictions in the written version and the alleged original case
    papers as there was no entry of trauma which is alleged in the written
    version by the respondent.
13. Further, the State Commission perused discharge summary of the
    appellant provided by the Military Hospital wherein the appellant was
    stated to be suffering from endophthalmitis. While placing reliance
    on the medical literature that was submitted by the complainant from
    reference book “Basic Ophthalmology’, the State Commission held
    that the respondent had miserably failed to treat the complainant
    post-operatively. It was concluded that the complainant had developed
    infection after the operation of cataract and the respondent miserably
    failed to diagnose it and take correct steps, which pointed out a
    clear-cut case of medical negligence on the part of the respondent
    in post-operative treatment. As such, the respondent was directed
    to pay a compensation of Rs. 3,50,000/-(Rupees Three lakh fifty
    thousand only) to the complainant within a period of two months,
    failing which the amount shall carry an interest @12% per annum
    from the date of order till its realization.
14. Aggrieved by the order of the State Commission, the respondent
    preferred Revision Petition No. 768 of 2016 before the NCDRC. The
    appellant also felt aggrieved by the fact that the State Commission
    had not allowed the claim for special damages for the sufferings and
    mental agony which he had to undergo due to respondent’s negligence
    in operation as well as pre and post treatment also preferred Revision
    Petition No. 2443 of 2016 claiming special damages and medical
    expenses in addition to Rs. 3,50,000/- (Rupees Three lakh fifty
    thousand only) already awarded. Both the Revision Petitions were
    heard together by the NCDRC and disposed of by the common
    impugned order dated 20.11.2018.
[2024] 12 S.C.R.                                                     1881

    Bherulal Bhimaji Oswal(D) by Lrs. v. Madhusudan N. Kumbhare


15. NCDRC has based its decision on the specific finding that on
    23.01.1999, i.e. within three days of the operation, the appellant
    had approached the respondent-doctor with a new dressing and pad
    which was not put when the complaint was sent back on 20.01.1999
    and there was no explanation provided by the appellant as to why
    and from where he had applied the new pad and dressing. NCDRC
    came to the conclusion that the patient had on his own changed
    the dressing of operated eye which caused the displacement of lens
    and the infection appears to be traumatic in nature. Therefore, it was
    held that the development of endophthalmitis was due to traumatic
    injury and cannot be attributed to any fault or deficiency on the part
    of the respondent during the cataract surgery.
16. Accordingly, the NCDRC allowed the revision filed by the respondent
    and, accordingly, the appellant’s complaint was dismissed, against
    which the instant appeal has been preferred. Further, the revision
    filed by the appellant for enhancement was dismissed.
17. We have heard the learned Counsel for the appellant and perused
    the material on record. However, despite service of notice, nobody
    has put in appearance on behalf of the respondent-doctor and we
    are accordingly proceeding with the matter ex-parte.
18. It has been submitted by the appellant that he had made five visits
    to the treating doctor before he took a second opinion and, on each
    visit, he was reassured that his operation was successful. However,
    a perusal of all the opinions by other eye specialists corroborate the
    fact that the appellant suffered from endophthalmitis which is an
    infection caused due to contaminated instruments. Further, it was
    submitted that when negligence was apparent on the face of it, there
    was no need of any expert evidence or testimony and the principle
    of res ipsa loquitor would become applicable.
19. The appellant has also submitted that even though NCDRC
    erroneously held that medical negligence is not visible from the record
    as the appellant had changed his own bandage while ignoring the
    fact that the records submitted by the respondent were ante dated,
    an observation clearly inferred by the State Commission. It was lastly
    submitted that the State Commission was absolutely correct in its
    finding that the appellant developed infection and abscess after the
    operation of cataract which the respondent-doctor failed to diagnose
    and also further failed to take corrective steps, thereby amounting
    to medical negligence.
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20. Even though the respondent has not entered appearance before us,
    the main defence adopted by him across the three forums basically
    hinge on the contention that the appellant-patient has himself failed
    to follow post-operation care instructions. Instead, it was submitted in
    the respondent’s reply before the District Forum that, on 23.01.1999,
    the appellant visited him with a new dressing and pad which was
    not put by him and the appellant failed to provide any explanation
    as to where it came from, post which the respondent prescribed
    him treatment for trauma. Therefore, the moment since when the
    appellant adopted any outside treatment and put on the new dressing
    and pad which caused trauma, the respondent is discharged of his
    liability and cannot be held guilty.
21. However, it must be noted that at this stage before the District Forum,
    the respondent had not produced any case papers or prescription
    details to corroborate his written version, as has been rightly observed
    by the State Commission. Rather, it was only at the appellate stage
    before the State Commission that the respondent produced such case
    papers for the first time. Even then, a bare perusal of prescription
    dated 23.01.1999 makes no specific mention of any trauma that
    has been observed by the respondent-doctor on the said date. The
    said fact has not been taken note of by NCDRC in the impugned
    order. In these circumstances, no credible reliance can be put on
    the respondent’s written version which was not supported by enough
    evidence to discharge him of his liability to exercise due care or to
    shift the said liability on the appellant. Therefore, in the absence of
    corroborating documentary proof, the said argument is of no avail
    to the respondent-doctor.
22. Before moving further, we would like to take a note of the medical
    opinion rendered before the State Commission by Dr. Bivash Kumar
    Das, an ophthalmologist, which was produced as Annexure P-28
    before us. In the said medical opinion, it has been clearly stated
    that oozing of pus after operation is not a usual occurrence and,
    in cases where there is small amount of white discharge from the
    eye post-operation, it usually disappears within 48 hours. It was
    further opined that oozing of pus after a cataract operation indicates
    presence of infection in the operated eye which needs to be treated
    aggressively, both locally and systematically, to prevent further spread
    of infection. With regard to the diagnosis of endophthalmitis after a
[2024] 12 S.C.R.                                                        1883

    Bherulal Bhimaji Oswal(D) by Lrs. v. Madhusudan N. Kumbhare


     cataract surgery, pain in the operated eye and no regaining of vision
     following operation were considered to be the two most important
     symptoms – a complaint that was consistently made by the appellant
     herein in his multiple visits to the respondent post-operation.
23. Given the medical opinion reproduced above and the fact that the
    appellant made five visits to the respondent-doctor in a week’s period
    while consistently complaining of immense pain in the operated eye,
    headache and lack of vision while the respondent kept reassuring him
    that the operation was successful and he would recover his vision
    eventually, whereas all the three other doctors who the appellant
    visited on 27.01.1999 opined that the appellant was suffering from
    endophthalmitis which has led to complete damage of the eye, it
    becomes evident that the respondent-doctor was negligent in his
    diagnosing the respondent’s eye. It becomes clear that the respondent
    failed to detect the infection and clear the same in time despite several
    complaints by the appellant. The said infection was diagnosed by
    the three doctors, namely Dr. Chitra Khare, Dr. Nitin Prabhudesai
    and doctors at the Military Hospital, but it was too late by then and
    the appellant had to undergo evisceration of his right eye leading to
    loss of vision. It was a blatant result of medical negligence by the
    respondent in post-operative care wherein corrective steps could
    have been taken, if the most reasonable and basic skills which were
    expected from the respondent-doctor, were applied.
24. Therefore, in the facts and circumstances of the case, we deem it
    appropriate to restore the findings and order passed by the State
    Commission.
25. Accordingly, the appeals are allowed. The impugned order is set
    aside and the respondent is directed to pay compensation of Rs.
    3,50,000/- (Rupees Three lakh fifty thousand only) to the appellants
    within a period of 2 months, failing which the amount shall carry an
    interest @12% per annum from the date of judgment till its realization.

     Result of the Case: Appeals Allowed.



     †
         Headnotes prepared by: Mukund P Unny, Hony. Associate Editor
                                 (Verified by: Liz Mathew, Sr. Adv.)