BHAGABAT SARAN AGARWALA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Father and son are the complainants.1. On 3.7.1990 complainant No.2 Anil Kumar Agarwala who is a student in a High School went with his friends to Minabazar at Rairakhol, exhibited by opposite party No.3. One item of the show was a stall where on payment a person shoots a shot gun aiming at a balloon. While a boy was shooting, Anil was standing nearby. The pellet of the shot gun hit right eye of Anil. Complainant No.1, the father took him to the Government Hospital at Rairakhol. On medical advise, he was taken to V. S. Medical College, Burla hiring a taxi. Opposite party No.2 is the Professor, Ophthalmology in the said college hospital. Anil was admitted to the hospital on 3.7.1990 and was examined by the doctor, Mr. Mohapatra, a lecturer in Ophthalmology who was a resident surgeon at that time. On 4.7.1990 X-ray was taken and the foreign body was localized, On 5.7.1990 right eye of Anil was operated, but the pellet was not removed. Thereafter complainant No.1 took Anil to Delhi where he was treated in All India Institute of Medical Sciences. At that place also the pellet was not removed. So Anil was taken to Chandigarh where also the pellet was not removed. When complainant No.1 took Anil to Shankar Netralaya, Madras, the pellet was removed but the eye was damaged by that time. He was treated in Apolo Hospital at Madras and thereafter filed this Complaint on 14th February, 1992.

(2.) Case of complainants is that on account of negligence of opposite party No.2, the Professor, right eye of Anil, complainant No.1 was damaged. Since the hospital in which opposite party No.2 is the Professor, is managed by State Government, the State has been made opposite party through the Secretary, Health and Family Welfare Department and the party which arranged Minabazar has been made opposite party No.3. Opposite parties 1 and 2 filed their statement of case jointly. They stated that full attendance was given to Anil from the time he was admitted to the hospital till he was discharged.3. So there is no negligence in service. Added to it, it has been stated that neither complainant No.1 nor Anil, complainant No.2 paid any charges for the medical services rendered to them and accordingly, they are not consumers.

(3.) Allegation is deficiency in medical service. Where the services rendered by a person is deficient on account of his negligence resulting in suffering of a complainant, compensation can be awarded under Sec.14 (1) (d) of the Consumer Protection Act. Non-removal of the pellet from the right eye of Anil is asserted to be negligence of opposite party No.2. In the statement, opposite party No.2 has clearly described how from the stage of reaching the hospital at Burla, Anil was treated. It has been stated that the wound was thoroughly inspected and injury was recorded in the bed head ticket. There it has been described as follows : "the verificant has examined the complainant No.2 alongwith Dr. R. C. Mohapatra and had prescribed higher antibiotics and special X-rays to localize the foreign body. So a limbal ring was fixed in the right eye in eye O. I. and the patient was sent for X-ray. This has been mentioned in the complaint petition of para-7 and also has been recorded in the bed head ticket. This was done so that the foreign body could be correctly localized and correct attempt could be made to remove the foreign body from the eye. The X-rays report were carefully studied before and during the operation. As the wound was exposed and some of the contents of the eye-ball were outside and the eye remained in a semi collapsed state in gross hypotoony-state due to draining of the aqueous and as the infection was initially controlled, on 5.7.1990, an elaborate operation was done by the verification under general anaesthesia, with two trained anesthesia tests and Dr. R. C. Mohapatra, Lecturer of Ophthalmology, who was the R. S. on the date of admission. As evident from the bed head ticket, the wound was thoroughly inspected and injury was recorded. It was a triradiate tear in the sclers close to the limbos at 3 'o'clock position in the right eye with veal prolapsed and slough covering the prolapsed uvea and vitreous. This was a 't' shaped tear extending 6 mm concentric to the limbos of the right eye with the center at 3 'o' clock and a projection of 3m as shown in the diagram drawn in the bed head ticket. Cleaning of the wound with the debridement of the necroses tissue was done, and the prolapsed urea was cut. Irrigation and the washing of the interior chamber was done. Attempts were made to remove the foreign body through the wound which was quite large, but the sincere attempts failed. As the pellet was of lead and was non-magnetic its removal with the help of magnet was not possible. After some attempts when the foreign body could not be removed with the help of scoup, forcepes and ivisvepositor it was presumed that the pellet was entered in the tissue of the eye, which if further attempted, would have resulted in severe intra ocular he hemorrhage, and would have caused further damage to the delicate tissues of the eye such as retina and choroid. As the eye was in colliery shock due to a penetrating injury in the colliery region and as due to the partial collapse of the eye due to the extensive injury the topography had change and another opening in the sclera at the presumed site of the foreign body w6uld have resulted in a permanent hypotony which would have resulted in the atrophy of the eye, according to the teachings of the texts on the subject. Prophylactic cryopexy was done around the wound to prevent subsequent retinal and chroidel detachment. The wound was closed with seven 8/0 silk sutures. The conjuctival flap was also stitched. The patient was resuscitated from general anaesthesis and was sent to his bed. Thus every care and caution was taken during the operation to safeguard the eye against infection intra ocular bleeding, damage to the vital structures and permanent hypotony which would result in atrophy. Preoperative measures were also taken for the localisation and removal of the foreign body. "