JYOTHI VIVEK vs Pradeep

THESE appeals arise out of the order passed by the District Forum, Thrissur in O.P. No. 820/1995. ''Appeal No. 575/96 is preferred by opposite parties 1 and 2 and the Appeal No. 593/96 is filed by opposite parties 3 and 4.

SHORTLY stated, the material allegations in the complaint are as follows : The complainant is a welder by profession. On 28.2.1995 while working in the welding section in the Engineering Workshop at Kannur, a small iron particle hit in his left eye and immediately he washed his eye with cold water and thereafter there was relief in pain. Subsequently the pain increased and reddishness developed in the eye and he could not look at the sun and light. On 2.3.1995 he met the first opposite party who is working in the second opposite party hospital as Ophthalmologist. The first opposite party examined his eye and told that there is a small wound on the cornea and there is no other foreign body inside the eye and she prescribed medicines. Even though the complainant told the first opposite party that he had severe pain in the eye and requested to find out the foreign body by x-ray and ultra sound scan she told that those tests are not necessary and there is nothing to fear. Subsequently pain got aggravated and his vision was diminished. On 12.3.1995 when he met the first opposite party, the first opposite party told that he would recover from the illness and he would get back the vision by using the medicines prescribed. Since he was not satisfied with the advice of the first opposite party he went to the 4th opposite party hospital on 13.3.1995. Some doctors of that hospital examined him. On 15.3.1995 the Chief Ophthalmologist also examined the complainant and he was subjected to an X-ray and a lense was prescribed. As advised by the 3rd opposite party the complainant purchased the lense but after one month his vision began to decrease. So he went to the 6th opposite party hospital and he was examined by the 5th opposite party on 18.4.1995, an x-ray was taken and ultra sound scan was done and the iron foreign body was detected and 5th opposite party advised that the foreign body is to be removed by surgery. On 18.4.1995 a surgery was done by the 5th opposite party and the iron foreign body was removed. He continued there for 10 days and then he was discharged with advice to continue the treatment. After the surgery and removal of iron foreign body from the eye his vision was diminished. So he went to Aravind Eye Hospital, Madurai on 13.6.1995 and there the doctors examined him and opined that the loss of vision is due to the cutting of the optic nerve during surgery. The complainant alleged that the opposite parties have committed negligence in their treatment of complainant and he claimed compensation. Opposite parties 1 and 2 filed joint written version. It was contended that O.P. No. 624/ 95 was filed on the same subject by the complainant alleging deficiency before the same Forum and the District Forum was pleased to return the complaint for presenting the same in the appropriate Forum but instead of presenting it before the State Commission, the complainant abandoned the complaint O.P. No. 624/95 and filed the present complaint as afresh one on the same subject matter. Since no permission to file this complaint was obtained the complaint is not maintainable. It was admitted that the complainant was registered as out-patient with O.P. No. 10302 on 2.3.1995 with the complaint of eye injury occurred due to an accident on 28.2.1995 and had given his address as the resident of Guruvayur and he made complaint of pain only and if he had mentioned that any foreign body has gone into his eye, he would have been subjected to further checking. His eye was dressed and medicines were given and he was asked to come in the next day but the complainant came after 10 days on 12.3.1995. On that day also the complainant had no other trouble in the eye and medicines were given. The complainant was asked to come on the next day for further check up. They also alleged that the complainant was non-co-operative and there is no deficiency on their part.

Opposite parties 3 and 4 also filed a joint version. It was averred that from the complaint itself, it would be seen that the 3rd opposite party treated with utmost care and caution and also with the compentence and skill expected of an expert in the field in diagnosing the disease after the essential tests and he prescribed suitable glass to the complainant and he was asked to report after 2 weeks but he did not comply with this. There is no deficiency on the part of the opposite parties.

5th OPPOSITE party also filed a version. It was averred that the complainant has past history of elsewhere for defective vision in the left eye following a welding accident. On examination on 17.4.1995, his visual acuity in the right eye was 6/6 (100% vision) and left eye 6/18 (70% vision). Detailed examination of the eye based on the history of a foreign body injuring the eye during welding without using protective goggles showed evidence of an iron foreign body entering the eye by the presence of a corneal wound and evidence of siderosis bulbi. The signs of siderosis bulbi indicated that there was foreign body within the eye and was made of iron. Patient was explained about the grevious nature of his condition and was advised early admission for further confirmatory tests and removal of the foreign body to prevent as far as possible the inevitable development of a painful blind eye. Since the patient has not come forward to get admitted he was advised to come the next day for admission. On 18.4.1995 the patient got admitted and x-rays of the eye were repeated but no foreign body showed up in the film as the foreign body was very small, ultra sound scan was done which revealed the small foreign body impacted in the retina. The case was then shown to the Unit-head and head of the Department Dr. T.P. Itteyerah. He confirmed the presence of the iron foreign body. Since the patient did not seek any further clarification the case was posted for surgery for the removal of the iron particle. After a pre-anaesthetic check up the patient under went intracular foreign body removal in the left eye under general anaesthesia on 20.4.1995. Utmost care was taken in the matter of operation following which the foreign body associated with a localized retinal detachment could be seen clearly. Since 11/2 months had passed following the injury the foreign body which had penetrated the retina was seen fixed there. The tip of the vitrestomy instrument was used to gently dislodge the foreign body and an intraocular magnet was used to extract it out of the eye. At the site where the foreign body had impacted a small tear was seen in the retina alongwith the slight oozing of blood from the tear. Cryopexy was done to seal the retinal tear so that the surrounding retinal detachment settles and also stops the bleeding. When the eye was found to be stable and there was no fresh bleeding the eye was closed. Post operative period was uneventful and the patient was on a course of antibiotics and steroids. A detailed examination was done on the fourth day, 24.4.1995 and the eye was found to be quite, the retina attached, but there was presence of milk haemorhage. There was no evidence of fresh bleeding. The patient was discharged on 27.4.1995. On 19.5.1995 the patient came for review when the vision recorded was right eye 6/6 (100% visual efficiency) and left eye 2/60 improving with glasses to 6/36 (40% visual efficiency). Finding in the left eye there is an irregular pupil and the fungus (inside view of the eye) hazy view probably due to blood inside), the patient was prescribed steroid and requested to come for review after a month. The patient was advised surgery because according to medical science, unless the foreign body becomes encapsulated or is removed in time, most of these eyes go blind. In this case even though siderosis bulbi had already set in, it was hoped that with the removal of the foreign body, the disease process could be contained and there will be no further deterioration of vision. H OPPOSITE party adopted tHe contention of tHe 5tH OPPOSITE party.

THE District Forum came to the conclusion that there is deficiency on the part of the opposite parties 1 to 3 and in that view passed an order directing the opposite parties 1 and 2 to pay Rs. 35,000/as compensation, besides the cost of Rs. 1,000/- and the 3rd opposite party to pay Rs. 15,000/- as compensation and Rs. 300/- as cost. Feeling aggrieved by the said order these appeals has have been preferred by opposite parties 1 to 5. The learned Counsel appearing for the opposite parties 3 and 4 contended that the main allegation in the complaint is against the opposite parties 5 and 6, that the vision was lost on account of surgery conducted in a negligent manner by them, but that contention was not accepted by the District Forum and they were absolved from liability. As regards the 1st and second opposite parties, the District Forum took the view that they did not advise for taking an xray. However, the case of the opposite parties 1 and 2 is that the complainant did not report to them that something was hit on the eye, and that he only reported some pain. It is also contended that admittedly the incident happened on 28.2.1995 and the complainant approached the opposite parties 1 and 2 only on 2.3.1995, three days after the incident. It was further averred that the first opposite party examined the eye and could not notice any injury in the eye and it is for this reason that the X-ray was not prescribed. The complainant reported after 10 days and even then also the complainant only reported pain. Learned Counsel appearing for the opposite parties 1 and 2 also submitted that the O.P. ticket is with the complainant but he did not produce it and if ''produced that would have given the indication when he reported to opposite parties 1 and 2 and what was the medicine prescribed by the opposite parties 1 and 2. From the evidence before us we are unable to say that in the nature of this case, the opposite parties 1 and 2 have committed any deficiency. Even according to the complainant he reported to the opposite party only after 3 days in spite of the fact that an iron particle entered into his eye. Probably he had no such pain as to force him to rush to hospital. It can also be noted if between 2.3.1995 and 13.3.1995, the pain increased normally one would not wait for another 10 days. This conduct of the complainant only would indicate that the injury was not such a serious one. He was asked to come after one week. Instead he went to 4th opposite party''s hospital and was examined by the 3rd opposite party who is the Chief Ophthalmologist. He was subjected to x-ray on 15.3.1995. Thereafter he was asked to appear after 2 days. Instead of reporting as advised he went to 5th opposite party''s hospital. Ext. A3 also would show that he was directed to review after 2 days. The District Forum has faulted the opposite parties 2 and 4 in not taking ultra sound scan. The learned Counsel brought to our notice a passage from System of Ophthalmology by Stewart Duke Elder, at page 567 where the following observations occur : "Apart from routine clinical examination, five special methods of investigation are available for conforming the diagnosis - those depending on magnetizability, on electrical conductivity and induction, on radiography, on the ultrasonic reflection of an echo, and on chemical analysis. All of them have obvious limitations, but fortunately most intra-ocular foreign bodies are metallic in nature and many of them lend themselves to one or more of these methods of enquiry".

ON the basis of this observation the learned Counsel submitted that they have adopted the radiography method approved in the text book. He further submitted that Ext. A3 card issued would show that the media is hazy due to injury and vetreously phose and without clearing the media it would be difficult to diagnose the real reason for locating the foreign body, and it is for this purpose they were prescribing preventive medicines and take test for 2 weeks and unless there is clear evidence to show that the procedures adopted by opposite parties 3 and 4 are not proper or they were deficient in any manner in dealing with the matter, it would be difficult for us to fasten liability on these opposite parties. As a matter of fact the patient was also not co-operative, he did not turn as advised and was changing doctors and hospitals. In the above circumstances the District Forum was not justified in holding that there is negligence on the part of the opposite parties 1 to 3.

THE foregoing discussion would show that the order passed by the District Forum finding deficiency on the part of the opposite parties 1 to 3 cannot be sustained in the light of the available materials. As expert witness was examined but nothing has been brought out in his evidence to establish that there was deficiency on the part of the opposite parties 1 to 3. We therefore allow the appeal, set aside the order of the District Forum and dismiss the complaint. Appeal allowed.