By. Sri. Chandran Alachery, Member:

The complaint is filed under section 12 of the Consumer Protection Act for an order directing the Opposite Parties to pay an amount of Rs.20,00,000/- to the minor petitioner as compensation for the deficiency of service from the part of Opposite Parties and also the cost of the proceedings.

2. Case in brief:- The petitioner is a minor 5 years old girl child. During 2007-2008 she was a LKG student. On 14^th February 2008 while she was playing in her house at night her right eye get injured with the scissors. Soon after she was taken to Vivekananda Hospital, Muttil. As the problem was eye injury they directed the guardians to consult an eye hospital without giving any treatment. The mother of the child did not take her to any other hospital at night. On 15.2.2008 at early morning itself, she was taken to the 2^nd Opposite party and consulted the 1^st Opposite Party at 7 am. Then the minor petitioner was admitted at the hospital with I.P No.08/87922, then an operation was conducted and the operation was completed only in the evening and was treated as inpatient till 17.02.2008. For the operation Rs.5,000/- was charged by the opposite parties On 17.2.2008, the 1^st Opposite party discharged the minor petitioner by stating absolute recovery and prescribed medicine. The doctor advised further checkup on 20.2.2008 at their evening eye clinic at MGT Building, Kalpetta. On 20.2.2008, the child was taken to the eye clinic at Kalpetta for check up. At the time of check up, all on a sudden without further treatment the 1^st Opposite Party referred the minor petitioner to COMTRUST Hospital , Kozhikode. As the time was late evening and lack of money, on the next day on 21.2.2008, the child was taken to COMTRUST Eye Hospital, Kozhikode. On realizing the worst condition of eye, the COMTRUST Hospital referred the child to Aravind Eye Hospital Coimbatore. On 21.02.2008 itself, the child was admitted at Aravind Eye Hospital Coimbatore. They tried their level best but on 08.03.2008, the eye was operated and eye removed. The complainant further submitted that the infection to the operated eye has occurred only due to the negligence in the care by the Opposite Parties. As the surgery was to the most delicate organ eye, it was the duty of the Opposite parties to take appropriate care. But Opposite parties failed to do it. Aggrieved by this, the complaint is filed.

3. On receipt of complaint, notice served to Opposite parties and Opposite parties appeared before the Forum and filed version. In the version of 1^st Opposite party, 1^st Opposite Party contended that the child was brought to the 2^nd Opposite party's Hospital on 15.02.2008 for the complaint of injury to right eye in the previous evening. The mother of the child applied breast milk to the affected eye as a first aid without realising the gravity of injury. On examination, the patient was not able to open her eye ball well. Cornea was perforated in the prolapse of the iris at a few in away from the papillary margin for 8' O clock to 11 O' clock. Gravity is explained to the mother of child, mother gave written consent for corneal repair under general anesthesia. Tropical antibiotic and anti fungal drops were also started.

4. The gravity of injury caused to the patient and the possibility of poor visual prognosis were explained to the mother and grandmother accompanied the patient. After fully conversant with the nature of injury and the possibility for loss of vision due to the gravity of injury, the mother of the patient gave written informed consent for corneal repair under General Anesthesia. The patient was admitted and injection TT and Gentamycin were given. Tropical antibiotic and anti fungal drops were also started. Under all aseptic care and precaution, conjunctiva thoroughly washed and inflammatory exudate were removed from the iris, prolapsed iris abscessed and the anterior chamber washed to remove the exudate and lens matter. The wound was closed with 4 interrupted 10.0 sutures. Anterior Chamber

reformed with Air. Sub conjunctival injection of Mydricain Genta and Dexa were given. Considering the possibility of fungal infection due to the application of breast milk to the affected eye, topical anti fungal and antibiotic medicines were continued. Natamycin eye

drops along with antibiotic Moxifloxacin were advised along with Atropine eye ointment. Oral antibiotic and anti inflammatory drugs were also added. On 16.02.2008 eye was quiet and the same line of treatment continued. On 17.02.2008 the patient's mother insisted for discharge as she was having two siblings to be locked after at home. Even though the First Opposite Party warned the bystanders about the need for inpatient care for the patient owing to the high risk of fungal infection in her case, the mother was desirous for a discharge and assured continuation of medicines and follow instructions of the doctor. Hence the patient was discharged on request with an advice for review on 20.02.2008.

5. The patient was brought to the First Opposite Party's Clinic at Kalpetta on 20.02.2008. On examination it was found that cornea was hazy and there was hypopym. Suspecting fungal infection, the patient was immediately referred to Comtrust Eye Hospital, Kozhikode with a diagnosis of Endophthalmitis. The occurrence of infection was not caused due to any negligence or deficiency in service on the part of the Opposite Parties. In the treatment of the patient the First Opposite Party had exercised utmost care and caution as expected from a reasonable and qualified medical practitioner. He had acted in accordance with an accepted practice and hence there is no negligence or deficiency in service on his part at any point of time in the treatment of the patient. No liability can be fastened upon the First Opposite Party in connection with the treatment given to the patient.

6. In the version of 2^nd Opposite Party, 2^nd Opposite Party contended the same points as 1^st Opposite party stated.

7. On verifying the complaint, version and documents the Forum raised the following points for consideration.

1. Whether there is any deficiency of service from the part of Opposite parties?

2. Relief and cost?

8. Point No.1:- The complainant filed proof affidavit and he is examined as PW1 and Ext.A1 to A10 and Ext.C1 and Ext.X1 and Ext.X2 are also marked. 1^st Opposite Party is examined as OPW1 and Exts.B1 and B2 series are also marked. Opposite Party's witness is examined as OPW2 and OPW3. Ext.A1 is the discharge summary from 2^nd Opposite party where in it is stated that “To return for check up on 20.2.2008”. In Ext.B1 and B2 medical report in page 22, it is stated that in final opinion portion “wound was already infected at the time of admission grave prognosis regarding the visual activity explained to bystander before corneal repair. There is high risk of post operative endophthalmitis in a already infected wound”. Exts.B1 and B2 documents are marked subject to proof. Thereafter Ext.B2 original documents produced by 1^st Opposite Party. In Ext.B2 series page 5, it is noted that the “discharge on request”. CW1 is a doctor ie Assistant Surgeon, District Hospital, Mananthavady is examined as a witness before the Forum and deposed in chief examination that there is high risk of postoperative endolphthalmitis in an already infected wound. In the deposition, CW1 also stated that there is no medical negligence on the part for treated doctor. This witness is again examined on 28.09.2013 and the witness stated that atmost care is highly essential in a case of endophthalmitis . In a question that if proper care and treatment is given in proper time, the calamity might have been avoided. The answer given by the witness is that in a contaminated wound like this chances of postoperative endophthalmitis is very high. There is no hindrance to refer the patient to a higher center. The case of Opposite Parties is that the child was taken to the Hospital in the contaminated eye and in the eye breast milk also applied. If breast milk is applied, the chance of infection is very high. But there is no document to substantiate that breast milk is applied. According to the Opposite parties, repair to the eye was done on the same day of admission and standard treatment is given to the child. A standard treatment expected from a doctor is already given to the patient. The Opposite parties produced a ruling reported in KLT 2005(3) page 965(SC) it is stated that so long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because of better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure. Here in this case the Complainant have not complaint with regard to the repair of eye of the child and further treatment during admission period. The Opposite Parties also admitted that there is chance for postoperative endophthalmitis in this case. Almost all witness examined before the Forum have deposed that there is chance for post operative endophthalmitis especially in a case where penetration with scissors and contaminated injury to eye ball is sustained to the patient. The risk factor is very high. To avoid postoperative endophtholmitis, proper care and treatment is necessary. OPW1 is the treating doctor who in cross examination deposed that there was compulsory discharge from the side of patient and usually it will be recorded in case sheet. Ext.A10 document is the doctor's order. OPW1 deposed that in Ext.A10. Compulsory discharge is not recorded. OPW1 is further examined and marked Ext.B2 document ie the original document of doctors orders. In Ext.B2 page 5 on 17.2.2008 it is recorded that “discharge on request”. In Ext.B2 also there is no word “Compulsory Discharge”. Compulsory discharge and Discharge on request is different. In a case of request for discharge, the doctor can explain the patient and bystanders of patient to the gravity of the injury and high risk factor. But on perusal, the forum found that there is no such effort from the side of Opposite parties. The Opposite Parties discharged the patient as if the injury is completely cured and for a routine check up, a date is given and directed the patient to report for check up on 20.2.2008. The patient or bystanders of the patient do not know the seriousness of the post operative possibilities of endophthalmitis. It is the doctor who knows it well. So the doctor should not have discharged the patient and it is the duty of doctor to explain to the patient regarding the high risk factor. The failure of doctor to explain the seriousness resulted the losing of one eye to a minor girl. The patient did not get proper care and caution during post operative period. If proper care is given , the situation would not have gone worst. The loss of eye to the patient is a great loss and it cannot be assessed in terms of money. So by analyzing the entire evidences, the Forum is of the opinion that there is gross deficiency of service from the part of Opposite parties. Point No.1 is found accordingly.

9. Point No.2:- Since point No.1 is found against the Opposite Parties, the Opposite Parties are jointly and severally liable to pay cost and compensation and complainant is entitled for the same.

In the result, the complaint is partly allowed and the Opposite Parties are directed to pay Rs.5,00,000/- (Rupees Five Lakh) only as compensation to the Complainant for the deficiency of service from the part of Opposite Parties and the Opposite parties are also directed to pay Rs.25,000/- (Rupees Twenty Five Thousand) only as cost of the proceedings. The Opposite Parties shall jointly and severally pay the amount to the Complainant within 30 days from the date of receipt of this order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 24^th day of April 2015.

Date of Filing:03.03.2009.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. Bava Coolie.

PW2. Anitha Raghavan. Doctor.

CW1. Vinija. Asst. Surgeon, District Hospital Mananthavady.

Witness for the Opposite Parties:

OPW1. Rajan Cyriac. Doctor.

OPW2. Dr. Vinija Doctor, District Hospital, Mananthavady.

OPW3. Dr. Arun Kumar. A Associate Doctor, Department of Opthalmology,

Govt. M.C.H. Kozhikode.

Exhibits for the complainant:

A1. Discharge Summary.

A2. Condition on Dischaarge.

A3. Medical Report. dt:12.04.2008.

A4. Letter. dt:31.03.2008.

A5 series (20 Nos.) Prescription.

A6 series Receipt.

A7. Copy of Letter. dt:21.02.2008.

A8. Copy of Out patient record. dt:21.02.2008.

A9 series(31 sheets) Copy of Out patient record.

A10. Medical report.

C1. Deposition of CW1. dt:20.01.2010

Exhibits for the opposite Parties.

B1. Copy Consent Letter.

B2 series Case sheet.

X1. Letter. dt:23.06.2009.

X2. Letter. dt:20.11.2009.