BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 29^th JUNE 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

SMT.LAVANYA M. RAI                 : HON’BLE MEMBER

ORDERS IN

C.C.No.299/2010

(Admitted on 29.10.2010)

Mr. Anthony D Souza,

S/o Mr. David D Souza,

Simon Villa, Kankanady,

Nagori, Mangalore  575001.

                                                                          ….. COMPLAINANT 

(Advocate for the Complainant: Sri DS)

VERSUS

1.  The Authorised Officer,

Colaco Hospital,

Bendore, Mangalore.

2. Dr. K. Deepak Rai,

   Sanjeevini,

   Opposite: Bharath Petrol Pump,

    West Gate Pride,

    Falnir, Mangalore, D.K. &

   Also at Associate Professor of

   Orthopaedic Surgery,

   Yenepoya Medical College

    Mangalore, D.K.

                                                                           …......OPPOSITE PARTIES

(Advocate for the Opposite PartyNo.1: Sri DALA)

(Advocate for the Opposite Party No.2: Sri UPM)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI VISHWESHWARA BHAT D:

     The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as:

Due to grievous injury to complainant right leg in the fall from a coconut tree on 11.3.2009 he was shifted to Colaco Hospital opposite party No.1. On the opposite party No.2 advice x-ray was taken heis admitted as impatient. Onopposite party No.2 asking whether he would have the fixation of fracturedone with the aid of intramedullary nailhas offered good stability with the aid of femoral plate complainant opted for internal fixation of the fracture could be done with the aid of intramedullary nail.  However to the surprise of complainant after surgery when complainant asked opposite party No.2 as to if internal fixation of the fracture was done opposite party No.2 appraised complainant that was not done the internal fixation are not available to opposite party No.2 hence the plate and screws which would go to show that opposite partyNo.2 was not as good as his promise and despite being cognizant of the objective facts of non-availability of the requisite facility to do the internal fixation with the aid of intramedullary nail of complainant had opted for the same.   The surgery on complainant was done by opposite party No.2 of fixation of the aid ofplate and screwsis done without obtaining informed consent of the complainant.  The consent form only mentions about the consent for operation under general anaesthesia.  Opposite party No.2 at no point of time disclosed to complainant in the consent form (a) the nature and procedure of the treatment, alternativeif available, an outline of the substantial riskadverse consequences of the refusal of the treatment on the date of carrying out the surgery on 13.03.2009 before administering the anaesthesia. Complainant was hospitalised from 11.03.2009 up to 19.03.2009 and had paid an amount of Rs.48,485/  The bill issued and claimed by amountto opposite parties.   The complainant was totally bed riddenconvalescence using the axillary crutches and the certain exercise asked by opposite party No.2 and as per the advice of opposite party No.2 on 26.5.2009 at 6.00 pm whileperforming the exercise the complainant developed severe pain in the leg and was unable to move.  Immediately he wasbrought to opposite party No.1hospital where opposite party No.2 examined the complainant and referred to do xray was noticed has implant had broken and complainant was advised for the removal of the broken implant and for putting steel rod i.e. intramedullary nail in the same place with a cost of Rs.40,000/ Complainant had undergone lot of pain and spent a huge amount and remained in thehospital till 24.05.2009 and since he has lost faith in the treatment of opposite party No.2 got discharged from opposite party No.1 hospital and against medical advice and got himself admitted at Yenepoya Hospital at Deralakatee inMangalore where the doctors at hospital from 26.5.09 to 29.05.2009 recorded implant failure right femur. The entry pertaining to 27.05.2007 of the doctors record to be used by the consultants only mentions H/o slip and fall in the bathroom at 7.00 PM on 26.05.2009 landed on right femur snap + O/E right femur mild 3^rd swelling BP 130/80 Pulse 84, RS20 crepitation Xray implant failure right femur.  Note is also made that at 9.15 pm on 26.5.2009patient smelling alcohol.  No entry was made by the staff nurses about finding of consumption of alcohol or as to the complainant having hold at anypoint of time.  On 29.05.2009 admission at Yenepoya Hospital the complainantagain underwentsurgery on 02.06.2009as per which the removal of implant and intramedullary interlocking nailing was done by Dr.Sudhakara Shetty.

2.     He further alleges opposite party No.2have done the surgery as specifically preferred by the complainant by doing the internal fixation with aid of interlocking nail as done by Dr.Sudhakara Shetty and promised by opposite party No.2 to the complainant rather than done internal fixation of the femoral fracture with the aid of femoral plating the same would not have ended in implant failure and the complainant have become short and also suffered permanent incapacitation and unnecessary unbearable pain and suffering because of the surgery. Complainant further alleges he was a driver and was earning a sum of Rs.10,000 per month now not in a position to walk has pain in his right leg and not in a position to perform any hard work and drive vehicle  as before. Claiming that opposite party are responsible for the ills of complainant seeks the compensation of Rs.5,00,000 and litigation expenses of Rs.10,000/.

3.     Opposite party No.1 in the version admits complainantwas admitted to opposite party No.1 hospital and was treated by opposite party No.2 in the opposite party No.1 hospital.  Opposite party No.1 is an unnecessary party to the case and complaintagainst opposite party is due as misjoinder of the parties.  Opposite party No.1 isa consultant based hospital and admits patients only under recommendations from medical practitioners who have a masters degree intheirrespective field.The rest of the allegation made in the complaint were denied by opposite party No.1, in fact there is no relief claimed bycomplainantagainstopposite party. Hence soughtdismissal of the complaint against opposite party No.1. 

4.     Opposite party No.2 in the version claims the complainant got issued a legal noticethrough Mr.Raghavendra Rao on 1.8.2009 which was replied on 13.8.2009 again complainantpersonally issued another notice on 28.01.2010 enhancing his claim from Rs.50,000 to Rs.5,00,000 which was also replied on 22.2.2010.  Thecomplainant again changed his counsel.  A new concoctedstory was built up in the allegedrejoinderto the reply notice.  Treatment given out to complainant by opposite party No.2 in the opposite party No.1 hospital is admitted.But the allegation that opposite party No.2 asked complainant as to how he would have the surgery carried out and the fixation of the fractured bonedone with the aid of the intramedullary nail as the inter fixation as it would offer good stability or with aid of femoral was denied.  Allegation that the facility for intramedullary nail not available with opposite party No.1 is denied.  The true facts are thecomplainant was admitted to opposite party No.1 hospital on 11.03.2009 and subjectedtothorough investigation and x-ray was done and shifted to ICU.   On 12.3.2009 after his pulse got over reduced to 72 per minute he was shifted to the room.  On 13.3.2009 opposite party No.2 with the help of another doctor and anaesthetic conducted surgery by putting 12 hold DCP Board (Femur Plating) opposite party had taken the best available step that of bone grafting towards faster healing.   The complainant was given the best of the post-surgery medication and on 16.3.2009 he was tested since he had requested for the discharge and was also advised not to put stress on the injured area and was asked to use Non-Weight bearing crutch walking and Q exercise which included straight leg raising and knee flexing exercise.  As complainantinsisted for discharge after thorough investigation he was permitted to discharge on 19.03.2009.  The complainantnever turned upthereaftereither for testing or consultation for more than two months.  Complainant came on 25.7.2009 with a complaint of slip and fall in the bathroom at about 7 PM on 26.05.2009 which made him land on the rightfemur resulting in the snapping of the internal plate.  The report of the routine doctoravailable at hospital showedthat there were signs of alcohol consumption in the complainant. On investigation it was clear that his arrival to the hospital complaining breakage of the plate because he failed to observe necessary instructions and conditions imposed by this opposite party during discharge.  On advice of opposite party No.2 the complainant was admitted to Yenepoya Medical Hospital at Deralakatteon 29.5.2009 andon 2.6.2009 the right femur implant was removed and intramedullary locking nailing was done and he was further advised to make non weight bearing mobilization.  Hence the contentions that complainant that surgery was performed by opposite party without obtaining the informed consent form that the blank without any mention being made therein in so far as the surgery intended to be  performed are totally false to the knowledgeofcomplainant.  The complainanthad full knowledge of the contents of the form and had consented for the surgery.The allegation that doctors record and the discharge summary reveal that there was an implant failure of right femur is denied and false.  In the present case on hand opposite party had installed the best plates with more than 8 cortical screws and he also conducted the bone grafting to the complainant and as such opposite party No.2 has taken all the care and caution which was required to be taken by an Orthopedician.The claim thatcomplainant got admitted to Yenepoya Hospital at Deralakatteand was conducted intramedullary nail rather than internal fixation of the fracture with aid of intramedullary nail with a pin or locking screws were denied    is false.  The allegation of complainant is a driver and his earning at Rs.10,000 per month and that he was not in a position to walk and perform any hard work and drive vehicle and his personal and family life has been adversely affected  and the notices have been promptly replied and soughtdismissal of the complaint.

5.     In the additional version opposite party No.1 mentioned that a new case wasmade in the complaint which is contradictory to the facts pleaded in the Legal notice.  There is noreliefclaimed as opposite party No.1 henceseeks dismissal.

6.    In support of the above complaint Mr. Anthony DSouza filed affidavit evidence as CW1 and answered to the interrogatories served on him and produced documents got marked at Ex.C1 to C24 as detailed in the annexure here below.  On behalf of the opposite parties Mr. Bernard J Mathias Prabhu (RW1) President and Managing trustee of opposite party No.1, Dr. Deepak Rai (RW2) Surgeon alsonot filed affidavit evidence and answered to the interrogatories served on them and produced documents got marked at Ex.R1 to R14 as detailed in the annexure here below. Dr. T Sudhakara(RW3) Orthopaedic Surgeon was cross examined.

7.      In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

     The learned counsels for both sides filed notes of arguments.  We have considered entire case file on record including evidence tendered by the parties.   Our findings on the points are as under follows:

               Point No. (i)  : Affirmative

               Point No. (ii) : Negative

               Point No.(iii) : As per the final order

REASONS

8.        POINT NO. (i):The complainanthadtakentreatment of surgery to the fractured right femur boneconducted by opposite party No.2 in thehospital of opposite party No.1 for which complainant had made the payment of the bills claimed is undisputed.  Hence there is a relationship between the parties as consumer the complainant and opposite parties as service providers.Further claim of complainant is that the surgery is done of fixing his right femur with plate and screws which brokedown in an allegedfall and as such amounts to deficiency of service by opposite party No.2 was disputed by opposite party No.2.   Hence there is alive dispute between the complainant and opposite party No.2 as contemplated under section 2 (1) (e) of the C P Act. As for opposite party No.1 is concerned no relief is to be claimed by complainant.  Hence we answer point No.1 in the Affirmative.

9. POINT NO.(ii):Withoutgoing into much of the detailed facts pleaded by complainant suffice to mention the allegation of complainant is that informed consent of complainant was not obtained by opposite party No.2 for the surgery by fixing plates and screw of right femur bone was done on March 2009.  Ex.C1 is the copy of the opposite party No.1 hospital case records pertaining to complainant with dateof admission on 11.3.2009 the operation consent reads thus:

OPERATION CONSENT

Name of the Patient MR. Antony DSouza I hereby give my consent for operation under general anaesthesia,/S.A I am undergoing operation at my own risk and shall not hold the Hospital or the Doctors attending on me responsible for the consequences of such operation or treatment.

Case Posted for ® Femur Plating & Bone grafty at 7.30 pm

Signature of Patient/:      sd/

Guardian/Parent:

Relationship:

Date:  13/3/09

Itcontains the signature of complainant,of course it does not mention either presence of doctors or of opposite party No.2 or of opposite party No.2 explaining the consequences or the alternativesavailable to the rightfemur plating and bone grafting to be done on complainant. 

10.     Learnedcounselopposite party No.2 pointed out that when there is fat embolism the only procedure that can be adopted infemur plating and bone grafting instead of taking the risk with intramedullary nail.  Reference was made to Ex.C1 the copy of the case sheet pertaining to complainant maintained by at opposite party No.1 hospitalon 12.03.2009 the Dr G K Bhat recorded:

ContinuCinomas splint mobl

Check pulse

Surgery 13/3/09 at 7.30 pm

AnaesDr. G. K. Bhat

Surgery  : plating with bone grafting in view of mild E/o fat embolism: 

Thus it is clear there was fat embolism in case of the complainant injured.

11.      As to how a patient of this type treatedas referred to published case papersof learned counsel for opposite party No.2.  Onthe Effects of Femoral Intramedullary Reaming on Pulmonary Function in a Sheep Lung Model wherein learnedAuthors have made the following observations:

The importance of early intramedullary nailing of fractures of the femoral shaft to avoid pulmonary complications has been well documented.  However, intramedullary nailing with reaming has been associated with adverse pulmonary events.  Also, it has been though that the presence of pulmonary contusions may increase the risk of pulmonary dysfunction in a patient who has multiple traumatic injuries.

12.     Similarly again at page No.201 as to the effect of Pulmonary dysfunction in the fat embolism syndrome learned Author have this to say:

     Pulmonary dysfunction in the fat embolism syndrome may be related to a cumulative dose of embolic material or to the acute magnitude of a single dose.  In either case, activation of inflammatory mediators is an important pathophysiological event.  The importance of this distinction may have implications with regard to how pulmonary injury can be minimized in patients who have a femoral fracture.  Efforts to decompress bone-marrow embolization before intervention and reduction of the fracture, regardless of the type of treatment, may be prudent.  Factors that influence pulmonary dysfunction

and need additional study include the methods of remaining, the design of the reamer and the intramedullary nail, the techniques for decreasing the viscosity and thermal necrosis of the intramedullary tissue, and the pharmacological interventions that block mediators of pulmonary microvascular injury.  Insertion of the awl and reaming may have a more profound effect in a long bone with an intact diaphysis, such as is found with an impending pathological fracture, closed femoral shortening, or total joint arthroplasty.

13.     Reference was also made to another publicationreported on Pulmonary Effect of Fixation of a Fracture with a Plate Compared with Intramedullary Nailing Author by Emil H. Schemitsch M.D and others learned Authors have observed:

ABSTRACT: Fat embolism syndrome and pulmonary dysfunction may develop in multiply injured patients who have a fracture of a long bone.  Although early fixation of a fracture is beneficial, intramedullary nailing may exacerbate pulmonary dysfunction by causing additional embolization of marrow fat.

14.     Again at page 985 the learned Author have observed: The effect of fat embolism vary from an absence of symptoms to the manifestations of fat-embolism syndrome, with hypoxemia, cerebral dysfunction, and development of fever within twenty four to forty eight hours after the onset of the injury.

The rate of mortality for patients who have adult respiratory distress syndrome associated with fat-embolism syndrome has been reported to be 10 per cent.

Intramedullary reaming causes an increase in intramedullary pressure and intravasation of fat emboli from the bone morrow.  Previous clinical studies have shown that nailing with reaming performed within twenty-four hours after an injury exacerbated hypoxemia.

Interestingly, although reaming produced embolic showering as seen on an echocardiogram, the actual insertion of the nail led to the greatest amount of fat embolization.

In patients who have pulmonary dysfunction, intramedullary nailing with reaming may cause additional pulmonary damage and may trigger adult respiratory distress syndrome.

15.     On the other hand the learned counsel for complainanthas also referred to various citations on the subject learned counsel had referred to Harrison’s Principles of Internal Medicine Twelfth EditionVolume 2where in reference was made to observation on Non thrombotic Embolism the learnedAuthors have observed:

NONTHROMOBOTIC EMBOLISM

Because the lung vasculature serves as a filter of the venous circulation, it is the recipient of diverse materials which can gain entry into venous blood, including bone marrow, foreign bodies, parasites, and tumor cells.  The most frequently encountered form of nonthrombotic embolism is fat embolism.  This dramatic and controversial entity follows the introduction of neutral fat into the venous circulation, most commonly after bone trauma or fracture (marrow fat), but occasionally after trauma to adipose tissue or liver infiltrated by fat.  The clinical sequence is characteristic.  After a latent period of 12 to 36 h or more, during which the patient is asymptomatic, sudden cardiopulmonary and neurologic deterioration appears.  Mental aberrations, delirium, and coma develop.  Dyspnea, tachypnea, and tachycardia occur, and the chest roentgenographic and physiologic components of the adult respiratory distress syndrome appear.  Anemia and thrombocytopenia are common, as are petechiae on the upper thorax and arms.  The pathogenesis of the syndrome is not clear, but it seems likely that two events occur, release of free fatty acids (by action of lipases on the neutral fat), which induces a toxic vasculitis, followed by platelet fibrin thrombosis; and actual obstruction of small pulmonary arteries by macro aggregates of fat.  Several forms of therapy have been proposed (corticosteroids, heparin, ethanol) but none has proved effective; treatment remains supportive and mortality rate high.  

16.     Learned authors have also observed that:

The very group in which internal fixation, preferably by intramedullary nailing, is comparatively easy and dependable.  Therefore, provided the necessary expertise and facilities are available, internal fixation may (some would say should) be used for transverse fractures in the

17.     At page 665 the learned Authors observed to other indications are pathological fracture, multiple fractures, fracture associated with vascular injury and fracture in a patient presenting major nursing problems.  In recent years, the method has been extended by the development of closed medullary nailing, which obviates the necessity to expose the fracture, and by the addition of locking screws, which allows internal fixation to be used for comminuted and unstable or lower third fractures. 

18.     The same learned Authorwhile mentioningabout femoral shaft fractures at page 667observes:

CLOSED MEDULLARY NAILING: This method can be used for almost any fracture of the femoral shaft.  However, it should not be attempted unless the appropriate facilities and instruments are available.  The basic implant system consists of an intramedullary nail (in a range of sizes) whichis perforated near each end so that locking screws can be inserted transversely at the distal end and obliquely at the proximal end; this controls rotation and ensures stability even for subtrochanteric and distal third fractures. 

19.     Then at page 696 learnedAuthor observes:

The risk of systemic complications can be significantly reduced by early stabilization of the fracture.  The most effective way of achieving this is by locking intramedullary nailing; however, the method is highly dependent on operator skill and experience and the availability of special equipment and facilities for intra-operative image intensification.  

20.     In this observationlearned Author mentions locking intramedullary nailingis the best equipment for the fixation purpose.

21.     Again at 697 as to open reduction and plating the learned Author as this to say:

OPEN REDUCTION AND PLATING

Plating is a comparatively easy way of obtaining accurate reduction and firm fixation.  The method was popular at one time but went out of favour because of the high  complication rate, including implant failure.  The main indications today are (1) the combination of shaft and femoral neck fractures and (2) a shaft fracture with an associated vascular injury.

22.     And at page 698 on intramedullary nailing the learned Author observed:

INTRAMEDULLARY NAILING

Intramedullary nailing is the method of choice for most femoral shaft fractures.  However, it should not be attempted unless the appropriate facilities and expertise are available.  The basic implant system consists of an intramedullary nail (in a range of sizes) which is perforated near each end so that locking screws can be inserted transversely at the proximal and distal ends; this controls rotation and ensures stability even for subtrochanteric and distal third fractures. Stability is improved by using interlocking screws; all locking holes in the nail should be used.  Often there is enough shared stability between the nail and fracture ends to allow some weight-bearing early on.  The fracture usually heals within 20 weeks and complication rates are low; sometimes malunion (more likely malrotation) or delayed union (from leaving the fracture site over-distracted) occurs. 

23.     Again at page 700 as to fat embolism and Thromboembolism learnedAuthor has mentioned the following:

Fat embolism and ARDS: Fracture through a large marro filled cavity almost inevitably results in small showers of fat emboli being swept to the lungs.  This can usually be accommodated without serious consequences, but in some cases (and especially in those with multiple injuries and severe shock, or in patients with associated chest injuries) it results in progressive respiratory distress and multi-organ failure (ARDS).  Blood gases should be measured soon after admission, and any suspicious signs such as shortness of breath, restlessness or a rise in temperature or pulse rate should prompt a search for petechial haemorrhages over the upper body, axillae and conjunctivae.  Treatment is supportive with the emphasis on preventing hypoxia and maintaining blood volume.

Thromboembolism: Prolonged traction in bed predisposes to thrombosis. Movement and exercise are important in preventing this, but should be supplemented by foot compression devices or prophylactic doses of anticoagulants.  If thigh or pelvis thrombosis is suspected, special investigations should be carried out as soon as possible; if the diagnosis confirmed, full anticoagulant treatment is started forthwith.

24.     In the case on hand subsequent to the plate with screws first surgery on complainantconducted by opposite party No.2 on 13.3.09.   He was admittedly discharged from hospital on 16.3.09 again on 26.5.09 complainant approachedopposite party No.2 in opposite party No.1 hospital with complaint of severe pain on the right leg at femur region. What is recorded in the case sheet by the attending doctor at the time of his admission.At page 3 of Ex.C5 is the hospital record of doctor’s record of 26.5.09 wherein we find the entries as follows:

26/5/09    H/o fall in the toilet at 7 PM

9.15 pm C/o pain in rt leg

No H/o vomiting, ,ENT Xray rt femur   

  Bleed

Underwent surgery on the f/b per bld grouping &

rh typing

rt femur 3 mths back ? plate in set

Not a k/c/o HTN/DM

Pt smelling alcohol. 

26.05.09

9.35 pm patient god admitted  Dr. Deepak Rai

InjVoveran lap 1 ml given     vital signs checked

                                          TP.N

x-ray taken                         BP140/8omm Hg

                                         Puls 86/mt

I.V.F DNS started                Resp 22/mt

Blood sent for                    Informed Dr.DeepakRai

Hb% pcv

Blood grouping &

Cross mdcy

10.15 Patient received from casuality 313

25.     The learned counsel for complainantarguedat Ex.C5 entry at 9.15 pm on 26.5.09 that the doctors at opposite party No.1 intentionally recorded as patient smelling alcohol with the intend to save themselves from failedsurgery.  However this argument of the learned counsel cannot be accepted for the simple reason it is nobody case this entry on 9.15 on 26.5.09 is made by opposite party No.2. It was also argued to mention that for the patient was smelling alcohol and no examination of the blood sample was conducted and no such report of findingalcohol in the blood of complainant. However as rightly pointed out for opposite party No.2 it is not a case of findingcomplainant whether criminally.  Liable for consumption of alcohol but just recording what was observed by the doctor when complainant came for treatment with the history of fall in the toilet. Hence the argument for complainant on this count is rejected.  In fact at page 2 of Ex.C5 as mentioned above the report of xray that implant failure of right femur is specifically noted.  It is not in dispute that subsequently on 29.5.09 complainant was shifted to Yenepoya Medical Hospital at Deralakatte Mangalore and the intramedullary nail fixing was done on him on 02.06.09 as per the discharge summaryEx.C6. Admittedly the complainant did not approach opposite party No.2 after he was discharged on 16.03.2009 before he came to opposite party No.1 hospital on 26.05.09.

26.     At Ex.C9 is a legal notice dated 01.08.09 addressed to opposite parties by one Mr. Raghavendra Rao advocate does not make mentions as to be cause of fracture of implant failure that occurred on 26.5.09 what is mentioned is my cline has totally bed ridden and taking rest at his home.  Unfortunately on 26.05.2009 my client stood up severe pain occurred and he could not walk and there was severe swelling in the operated leg, he could not tolerate the pain my client approached opposite party No.2 on the same day and there he was adviced to admit as inpatient.   This is completelyinconsistent towhat was the standtaken in the complaint and even in the medical record at Ex.C5.

27.     Ex.C10 dated 28.1.2010 is another notice addressed by complainant himself to opposite party No.2 on whichcomplainant mentions on 26.5.09 as at 6 pm while he was doing exercise as advised himbyopposite party No.2 he developed sever pain in the legand unable to move.  Ex.C11 is the copy of rejoinder issued to Mr. UdayaPraashMuliya,Advocate.   Ex.C12 is the reply to Ex.C9 at Ex.C11 it is mentioned that dispute in the entry as patient smelling alcohol and that in the nurses notingdoes not mention about doing any test about the presence of alcohol.

28.     Suffice to mention that there was an implant failure of the surgery done by opposite party No.2 on 13.3.09 at opposite party No.1 hospital to complainant and that implant failure was on 26.5.09 at about 6.30 or 7 pm as per the statement made by the victim i.e. complainant when he first approached opposite party No.1 hospital and the recorded at 9.15 pm that ‘there was a pain in the implant failure’. Thepatient smelling alcohol wasobservation of themedical officerwhen the patient approachedthe hospital. It is not necessary for us to look into the cause how the failure took place.  That the implant broke down on 26.5.09 and that complainant never visited opposite party No.2 at any timetill 26.5.09 after his discharge on 16.3.09 is undisputed.  We have alreadyfound from the observations of various Authors as to when the patient with plates with screwsfor fixing the femur fracture and when intramedullary nailing surgery is to be conducted. In the case on hand as we have foundout from the medical records earlier,there was fat embolism in respect of the complainant as recorded on 13.3.09.  We have also noticed asquoted from the observation of the various Author’s that in case of fat embolism intramedullary nailingsurgery is not suggested.  It is also observation of the learned Authors that plates and screws for fixing femur fracture also involves certain risk of failures.  The case on hand approach of opposite party No.2 in selectingplate with screw method to fix the right femur fracture of the complainant in the given circumstance of fat embolism can never be construed as act of negligence. Instead the only conclusion that we can draw is that as a prudentorthopaedic surgeon in our view opposite party No.2 selected the one procedure which was better surgery to the situation in the given circumstance of the situation in which the complainant was with fat embolism was adopted by opposite party No.2 andcannot be found fault within.

29.     In respect of the failure of the bone grafting with plate and screw fixingdone on complainant by opposite party No.2 in thehospital of opposite party No.1 is concerned the failure was occasioned due to a fall in the bathroom as recorded at Ex.C5 in the doctor proceeding sheet on 26.5.09 at 9.15 pm.  There is no reason why concerned doctor has to be suspected from making this entry during the course of his duty at casualty. In the given circumstance we are not suspecting genuineness of entry made therein. Rather the repeated change in stand taken by complainant as to the cause of this fracture of failure of implant is to be suspected. 

30.     It is the case of complainant that opposite party No.1 hospital had no facility to conduct intramedullary nailing surgery and as such opposite party No.2 eventhough after explaining of conductingintramedullary nail surgery did fixation of the fracture with the aid of plateandscrews without giving any prior informationto the complainant.  Ex.R2 is case sheetproduced by opposite party No.1s hospital in respect of apatient Mr. Prajwal with the date of admission on 2.10.2008 diagnosis mentioned as fracture subtrochanteric left femurcomminuted with larcuation of bothfemur.   The case sheet mentions interlocking nailing was done on 2.10.2008.  Another case sheet is also produced to show much prior to the surgery doneon complainant in the hospital of opposite party No.1 by opposite party No.2 of interlocking surgery. Assuch the contention for complainant as even after explaining to complainant by opposite party No.2 of conductingfixation of fracture done with the aid of intramedullary nailwhat was done was only fixation with the aid of screw for want of facility in opposite party No.1 hospital cannot be accepted.

31.     Learned counsel for complainant to substantiate his argument referred to the reported case of Supreme Court V. Krishna Rao vs Nikhil Super Speciality Hospital and Anr. 2010 SAR (Civil) 550 a judgement referred with Apex Court.   In this reported case it is held:

(A) Consumer Protection Act, 1986 Sec.2(1)(o) and 14 Medical negligence Requirement of expert evidence Fora is not bound in every case to accept the opinion of the expert witness In the complaint appellant alleged that his wife was not given proper treatment District Forum relied on the evidence of doctor who was examined on behalf of the respondent doctor deposed I have not treated the case for  malaria fever But the death certificate disclosed that patient died due to malaria In view of this finding Distt. Forum awarded compensation State Commission has recorded a finding that no expert opinion was produced to prove that line of treatment adopted by respondent was wrong or was due to negligence of respondent doctor National Commission upheld the finding Hence this appeal Held: in the facts and circumstances of the case expert evidence is not required In most of the case, medical negligent is a mixed question of law and fact The Fora is not bound in every case to accept the opinion of expert witness The orders passed by National Commission and State Commission granted by District Forum, appeal allowed. 

32.     Learned counsel for complainant as referred to another reportedcase of the Apex Courtin Malay Kumar GangulyvsSukumar Mukherjee (DR) &Orsin III (2009) CPJ 17 (SC) referred to the section 45 of Evidence Act 1872 it is held:

(i) Evidence Act, 1872 Section 45 Expert Evidence Evidentiary value Court is not bound by evidence of experts which to a large extent is advisory in nature Medical science is difficult one Court for purpose of arriving at decision on basis of experts must take into consideration difference between expert witness and an ordinary witness. 

33.     In fact the same in thisreported case whileconsidering the meaning of word Negligence as to what is Medical Negligence it is held:

(xiii) Medical Negligence Right of patient to be informed patients by and large are ignorant about disease or side and adverse effect of medicine Ordinarily patients are to be  informed about admitted risk if any If some medicine has some adverse effect or some reaction is anticipated, he should be informed thereabout It is not done in this case Law on medical negligence also has to keep up with advances in medical science as to treatment as also diagnostics.

34.     It was argued referring to this observation of the circumstance by complainant in not explaining the treatmentgivenby the doctor of not explaining pros and cons and the alternative method.  However in the case on hand in the operation consent form of complainant the details are not mentioned but as we can see and as discussed from the availablerecordbyopposite party No.2 had taken the step and procedure for the surgery which was in the given circumstances is the best method of treatment tothe patient amounts to alternative method as the one adopted by opposite party No.2 on 13.3.09 that was required to be done in view of mild fat embolism found with the complainant.  Hence in our opinion opposite party No.2 cannot be found fault with adopting this procedure.  It is to be noted evenas admitted by the complainant for the 2^nd surgery done at Yenepoya Hospital at Deralakatte, Mangalore complainant was not charged. 

35.     Reference was also made by learned counsel for complainant another reported case of Savita Garg vs The Director, National Heart Institute Respondent S.C & National Commission Consumer Law Cases (1996.2005) wherein it is held inter alia quote:

(iii) Consumer Protection Act, 1986, Sections 13 and 14 Consumer Forum object Held that the Consumer Forum is primarily meant to provide better protection in the interest of the consumers and not to shot circuit the matter or to defeat the claim on technical grounds.

36.     Reference was also made to another reported case by learned counsel for complainant in A K. Mittal (DR) vs Raj Kumar II (2009) CPJ 160 (NC) relating to informed consent wherein it is held referred to section 2(1)(g) of the C P Act:

Consumer Protection Act, 1986 Section 2 (1) (g) Medical Negligence Surgery Child developed facial paralysis Informed consent not obtained Name of surgery, procedure and techniques followed in performing surgery, not mentioned in consent form Nature of surgery and likely complications not explained Hospital records not given to complainant, which would enable him to present the same before AIIMS Discharge summary not produced before any Fora  Negligence on part of opposite parties proved Compensation and cost awarded. 

37.     In the case on handunlike in all copies of the document it is not the case of complainant that the copy of the hospital record not given to him certain allegation made about the hospital as to not adopting ofintramedullary nailing surgery as discussed earlier.   As on given facts of the case we are of the view opposite party No.2 cannot found faultwith for the failure of the implant fixation with plates with screws.  It occurred on 26.5.09which was mentioned used by opposite party No.2 for fixationof the femur fracture on 13.3.09.  As we can make out, whatthe procedure was adopted for the surgery and treatment of complainant was as a prudent Orthopedician could have done in the given circumstances.  Opposite party No.2 in our view at no stretch of imagination be construed as negligent in conducting surgery on the complainant.  In the circumstance we are of the considered view complainantfailed to prove negligence on the part of the opposite party No.2 as what was done by him was the procedure anyone in the circumstance, an expert as of opposite party No.2 would have done in the circumstance of the given nature. Hencecomplainantfailed to prove deficiency in service on the part of opposite parties.  Hence we answer point No.2 in the negative.

38.     POINT NO.(iii):  Wherefore the following

ORDER

The complaint is dismissed.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.              

(Page No.1 to 27directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 29^thJune 2017)

              MEMBER                                               PRESIDENT

      (LAVANYA M. RAI)                          (VISHWESHWARA BHAT D)

D.K. District Consumer Forum                   D.K. District Consumer Forum

                    Mangalore                                                 Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Anthony DSouza

Documents marked on behalf of the Complainant:

Ex.C1:Doctors Record

Ex.C2:  Bill

Ex.C3: First Discharge Summary issued by opposite party No.1

Ex.C4: Second Discharge Summary

Ex.C5: Doctors Record

Ex.C6: Discharge Summary issued by Yenepoya Hospital

Ex.C7: AD Card

Ex.C8: Receipt

Ex.C9: Legal Notice

Ex.C10: Copy of communication letter

Ex.C11: Rejoinder

Ex.C12: Legal Notice

Ex.C13: Medical Bill of Yenepoya Hospital

Ex.C14: Cash Bill issued by Yenepoya Hospital

Ex.C15 to

Ex.C19: Cash bill issued by Yenepoya Hospital

Ex.C20: Prescription of Colaco Hospital

Ex.C21: Tax Invoice of Yenepoya Hospital

Ex.C22: Discharge Bill of Colaco Hospital

Ex.C23: Discharge Bill of Colaco Hospital

Ex.C24: Discharge Bill of Colaco Hospital

Witnesses examined on behalf of the Opposite Parties:

RW1  Mr. Bernard J Mathias Prabhu, President and Managing Trustee of opposite party No.1,

RW2 Dr. Deepak Rai, Surgeon

RW3 Dr. T Sudhakara, Orthopaedic Surgeon

Documents marked on behalf of the Opposite Parties:

Ex.R1:Original case sheet of the complainant Antony D Souza

Ex.R2:Original case sheet of patient Mr. Prajwal admitted on 2.10.2008 for surgery through intramedullary nail

Ex.R3:Original case sheet of patient Mr. Akhattar admitted on 25.09.2008 for surgery through intramedullary nail

Ex.R4:Original certificate issued by Dr.RonalaMenezes

Ex.R5:Original certificate issued by Dr. Deepak SHegde

Ex.R6:DCP Fixation and Autogenous Bone Graft to Treat Nonunion of Femoral Shaft Fracture

Ex.R7:Original Articles-Impact of the Method of initial stabilization for Femoral Shaft Fractures in Patients with Multiple Injuries

            at Risk for complainant (Borderline Patients)

Ex.R8:Injury, Int.J. Care Injured (2006) 375, 550.558 Fat embolism The reaming controversy

Ex.R9:Plating of Femoral Shaft Fractures a review of 15 cases

Ex.R10:Short Communication-Biological plating of comminuted Fractures of femur and tibia

Ex.R11: Case report: Fatal Pulmonary Embolization after reaming Of the femoral Medullary Cavity in Sclerosing Osteomyelitis:

             A case Report

Ex.R12:Fat Embolism and Death during Prophylactic Osteosynthesis of a Metastatic Femur using an undreamed femoral nail

Ex.R13:Subfascial plate fixation of comminuteddiaphyseal Femoral Fractures: A report of Three Cases Utilizing Biological                                    Osteosynthesis

Ex.R14:Admission record ofYenepoya Medical College Hospital.

Dated: 29.06.2017:                   PRESIDENT   ​