By G. Yadunadhan, President. The above complaint is filed alleging medical negligence on the part of opposite parties. According to the complainant he had sustained injury on his left thigh bone on account of a fall on 16.4.1999. The complainant was immediately admitted in the 2nd opposite party hospital with grade II compound fracture shaft of left femur with fracture tronchanter and the complainant was subjected to surgery, open reduction internal fixation of plates and screw on 17.4.1999 and discharged on 19.5.1999. As advised the complainant went for check up on 18.6.1999, but had to be again taken to the hospital on 25.6.1999 owing to femur pain, but in spite of medication the pain did not subside. On 10.7.1999 the complainant was admitted to the 2nd opposite party hospital due to pus and severe pain and continued treatment with diagnosis of minimal infection as IP until 1.8.1999. The complainant was subjected to second operation, but at the time of discharge also pain on the injury was complained to the doctor and on removal of plaster he could not fold his left knee as before. The complainant was admitted for a third time on 17.12.1999 for mobilization and was advised physiotherapy. Severe pain on the injured part of the body continued and on 22.12.1999 while discharging as well there was no relief from the pain. It is alleged that the doctor had advised to ignore the pain since it would stop naturally in the course of time. On 14.1.2000 X-ray was taken and noting that the fracture had united, physiotherapy was advised on 25.2.2000. On 18.4.2000 the observation after examination was fracture is getting united. In spite of all this as there was no relief from pain the complainant was admitted in the Medical College Hospital on 2.8.2000 wherefrom it was diagnosed as non-union fracture shaft of femur. All implants put by the opposite parties were removed and new implants were put on 11.8.2000 and the complainant discharged on 26.8.2000. The complainant continued treatment until 17.10.2000 and after completion of treatment from Medical College Hospital the complainant is now fully recovered. Alleging negligence and deficiency in service on the ground of wrong diagnosis the above complaint is filed claiming a total compensation of Rs.2,19,778/-. The opposite parties entered appearance and filed detailed versions disputing and denying the allegations and claims made in the complaint. The 1st opposite party contended that the complaint was barred by limitation in so far as the same is filed after two years from the date when the cause of action arose. On merits it was contended that the complainant was brought to the 2nd opposite party hospital at 12 am (midnight) on 16.4.1999 following a fall from a height. The complainant was noted to have grade III compound fracture of the shaft of left femur with fracture trochanter left femur. The wound was cleaned with betadine & saline, fracture reduced and immobilized with skin traction. He was given IV antibiotics and other supportive treatment. After necessary investigation including X-rays, hematological investigations, ECG and after arranging blood he was taken to theatre on 17.4.1999. Open Reduction and Internal Fixation (ORIF) of the fracture was done under spinal anesthesia with all aseptic precautions and with utmost care and caution. The intra operative and post operative period was uneventful. The complainant was given post operative antibiotics and other supportive management. The complainant was given continued care and proper attention in the 2nd opposite party hospital under the care of the 1st opposite party after surgery till the date of discharge, namely 19.5.1999. Antibiotics were revised in time according to culture and sensitivity report. On 12.5.1999, the raw area over the original compound wound was skin grafted and patient was discharged on 19.5.1999. The complainant remained without fever through out the post operative period except one or two minor spikes. The patient was reviewed by the 1st opposite party on 1.6.1999 in the OPD. The fracture was getting united and the patient was advised to review after one month. On 25.6.1999, the patient complained of fever and pain by proxy, before the 1st opposite party and proper antibiotic medications were given. The complainant was readmitted on 30.7.1999 with minor wound infection and was discharged after two days when there was improvement in the condition of the wound. During this period the complainant was given cleaning and dressing for the wound and given appropriate antibiotics. The patient was reviewed in the OPD on 19.8.1999 and antibiotics, analgesic anti inflammatory drugs and vitamins were given to the patient. Patient was readmitted on 17.12.1999 for physiotherapy. He was put on POP cast for mobilization, as the fracture was not fully united. The complainant was discharged on 22.12.1999. Thereafter the complainant was followed up only as an outpatient. The outpatient records and X-rays are with the complainant. It is the usual practice in the 2nd opposite party hospital to give the OP records and X-rays to the patients. From the documents produced by the complainant it is seen that the complainant reviewed with the 1st opposite party on 25.2.2000 and physiotherapy and gradual partial weight bearing with walker was advised. On 18.4.2000, (the tlast time when the patient has seen the 1st opposite party) the patient was reviewed by the 1st opposite party in the OPD and the fracture was found to be getting united. Hence the patient was advised full weight bearing with calipers. The patient was lost to follow up after this point of time. He denied all the allegations of negligence, carelessness etc. It was further contended that the complainant was negligent in following up during the crucial period when the fracture showing signs of radiological union was subjected to protected weight bearing and he would have subjected his affected leg to unprotected weight bearing which has resulted in non-union of the fracture alleged to have been detected later in the Medical College Hospital. There was no wrong diagnosis. The 2nd opposite party also filed a detailed version raising almost similar contentions and adopting the contentions raised by the 1st opposite party. The opposite parties contended that the complainant was treated bestowing reasonable care, caution and attention and as per the standard medical protocol and sought for the dismissal of the complaint. The complainant has filed a rejoinder on 12.1.2004 to meet the contention of the opposite parties regarding limitation, wherein it is stated that the cause of action for the complaint arose after the completion of the treatment and that the last date of check up in the Medical College Hospital was on 6.4.2003 and hence there is no bar of limitation. The evidence in the matter consists of the oral testimony of the complainant as PW1 and documents marked as Exts. A1 to A10 and that of the 1st opposite party as RW1 and document marked as Ext. B1. None was examined on the side of the 2nd opposite party. The issues that arise for consideration are: (1) Whether the complaint is maintainable? (2) Whether the complaint is barred by limitation? (3) Is there any negligence or deficiency in service on the part of the opposite parties? (4) What order as to reliefs and costs? Issue No.1: Even though in the version a contention is seen raised that the complaint is not maintainable the same has not been seriously pressed. In any view of the matter when admission and treatment of the complainant and payment of fess etc. is admitted the complainant will definitely be a consumer and hence we hold that the above complaint is maintainable. Issue No.2: The opposite parties have raised a contention that the complaint is barred by limitation. In paragraph 7 of the complaint it is seen specifically stated that the treatment at Medical College Hospital continued until 17.10.2000 and that after completion of treatment from Medical College Hospital the petitioner is now fully recovered. This according to the opposite parties is the starting point of limitation and the complaint filed on 23.8.2003 without any delay condonation petition is barred by limitation as being beyond the period of two years prescribed under section 24A of the Consumer Protection Act. To get over this difficulty, the complainant has filed a rejoinder on 12.1.2004 contending that the last date of check up in the Medical College Hospital was on 6.4.2003 and as PW1 he has also adduced evidence accordingly, besides relying the entries in Ext. A6, his treatment record from Medical College Hospital. According to the opposite parties the continued treatment etc. and Ext. A6 may at best be grounds available to the complainant for requesting condonation of delay, provided he had filed any such application and in no way can the same be construed as continuing cause of action. The 1st opposite party has got a further contention that the last date of consultation with him by the complainant is on 18.4.2000 and hence in any view of the matter the complaint is barred by limitation as against the 1st opposite party. On scanning through the pleadings, evidence and materials available in the matter it can be seen that the complainant was under the treatment of the opposite parties from 16.4.1999 till 18.4.2000 and later he was admitted to the Medical College Hospital, Kozhikode. Even going by the case of the complainant the implants put by the opposite parties were removed and new implants were put on 11.8.2000. Ext. A6 would show that the last check up regarding the reduction of fracture and non union etc. was on 17.10.2000. Thereafter as per Ext. A6 the complainant was admitted to Ortho Unit III as I.P.No.8029 was on 12.2.2003, wherein it is specifically recorded that the fracture has united and what is done is implant removal and all the treatments thereafter till 6.4.2003 is relating to the said implant removal, minor infections etc. This by no stretch of imagination could be taken as a ground for enlarging the period of limitation. We hold that the complaint ought to have been filed within two years of 17.10.2000. Thus there is a delay of around ten months in filing the above complaint. According to the opposite parties as there is no application filed for condoning the delay, the complaint has to be dismissed. They relied on I (2003) CPJ 31 (NC). On the other hand the counsel for the complainant submitted that sufficient cause is there for not filing the complaint within two years and that the delay has to be condoned. He relied on Naik Mahabir Singh Vs. Chief of Army Staff reported in1990 SCC 89(1) to put forward a contention that even an oral prayer of the counsel is sufficient and the delay has to be condoned. Even though we are of the view that the said decision is not applicable in the instant matter, as the matter is of the year 2003 and the parties have adduced evidence, a dismissal on such a hyper technical ground may not be proper or fair, we propose to dispose off the above matter on merits holding that the complainant has made out sufficient cause for not filing the complaint earlier. The issue is answered accordingly. Issue No.3: Going by the complaint the main allegations of negligence and deficiency in service is that there is wrong diagnosis regarding the union of the left femur alleged to be sole cause of severe pain. According to the complainant he was subjected to surgery twice and he relies on Ext. A8 to substantiate the same. He also alleges that the relevant treatment records have been suppressed by the 2nd opposite party. According to the complainant the case sheet and treatment records submitted by the 2nd opposite party on 29.6.2005 as per the direction in I.A. No.19/2004 is incomplete in so far as records relating to I.P. N o.2648 is not seen therein. Adverse inference is requested to be drawn. It is further contended that the X-ray taken on14.9.1999 does not show any implants whereas the X-ray taken in between 16.4.1999 and 19.5.1999 shows the presence of implants. Thus the complainant would contend that the opposite parties have failed to explain why the complainant was subjected to a second surgery after admitting him as I.P. No.2648. It is further contended that owing to relentless pain and suffering caused thereby the petitioner frequently went to the OPD of the 2nd opposite party on various dates. It is further contended that all the exercises and physiotherapy were advised by the doctor when there was no implants, which is a must and is having a vital role relying on the testimony of RW1. The fact that the 1st opposite party had gone abroad is also pointed out as a ground for alleging negligence and deficiency in service. As against this the 1st opposite party would contend that the complainant had suffered a very serious and complicated type of fracture namely fracture of the neck and compound fracture of the shaft of the same bone, the left femur. The complainant was brought to the 2nd opposite party hospital at 12 am (midnight) following a fall from a height at 7 pm and thus there was a delay of around 5 hours between the fall and arrival at the hospital which is pointed out as a ground for the complications like delayed/non union, infection etc. The bone had come out and had been exposed to the atmosphere for about 5 hours which will cause infection at the fracture site and fall from height is a high energy impact which would cause extensive soft tissue damage and damage periosteum which contains the nerves and blood vessels ennerving and nourishjing the bone, the consequence being delayed union or non union. Thus infections at the fracture site and a non union/delayed union are the two natural complications expected in the case of the complainant. According to the 1st opposite party the complications were properly managed and except for non union for which the complainant underwent treatment at the Medical College Hospital, every else was properly taken care of, and this is pointed out to substantiate the contention that the complainant was treated with all care, caution and attention and as per the universally accepted medical protocol. The documents produced on the part of the complainant itself would show the treatment given besides the records submitted by the 2nd opposite party in answer to I.A. No.19/2004 and according to the 1st opposite party there is nothing on record including any expert evidence or any medical authorities suggesting that the treatment given is not proper or that the same is deficient in any manner. The opposite parties would contend that of both the fractures, the most complicated is the one on the neck of femur which was diagnosed in time and had healed completely because of the care taken and correct line of treatment followed by the 1st opposite party. The non union of the fracture of the shaft of femur and the infection at the fracture site are accepted complications in such cases as evidenced in standard text books and journals. It is further submitted that the doctor who has treated the complainant at the Calicut Medical College has never seen quoted a saying that the diagnosis or treatment on the part of the 1st opposite party was either wrong or contrary to accepted practices. The said doctor was not examined as well. It is the contention of the opposite parties that the fracture sustained by the complainant was a very serious injury which could have lead to many complications necessitating long periods of hospitalizations and repeated surgical interventions. But when the complainant got admitted to the Calicut Medical College Hospital, he had only one problem that is the non union of the fracture of the shaft of the left femur which is a generally accepted complication in such cases. All other complications were averted because of the prompt and correct line of treatment given to the complainant under the direction of the 1st opposite party at the 2nd opposite party hospital. The complainant was not even having an infected fracture site. The evidence of the 1st opposite party regarding the medical and technical issues remains uncontroverted. Alleged non production of documents is of no consequence as the complainant does not have a specific case that something which ought to have been done was not done or something which should not have been done is done in the matter and there is absolutely no expert evidence to substantiate the allegations made by him in the complaint. When there is nothing on record to indicate that the complications were caused on account of any act or omission on the part of the opposite parties, the fact that the 1st opposite party had gone abroad assumes no significance as far as the matter is concerned. The legal position as far as cases of medical negligence are concerned is well settled. The Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab and another reported in 2005 (6) Scale 130 has reiterated that negligence in the context of medical profession necessarily calls for a treatment with a difference to infer rashness or negligence on the part of a professional, in particular a doctor additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. 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 a 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 which the doctor followed. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that day, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. It is for the complainant to prove his case, as has been held by the National Commission in B. Anthony Raj & Another Vs. SH. Thomas Hospital & Another II (2006) CPJ 80 (NC ). The Hon’ble National Commission in Indira Kartha & others Vs. Dr. Mathew Samuel Kallarikkal & another 1 (2006) CPJ 62 (NC) has held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men nor because he had displayed less skill or knowledge than others would have shown. In this background when the common evidence and records are analysed no finding of any negligence or deficiency in service is justified. No evidence, let alone any expert evidence is adduced to show that some thing that ought to have been done in the matter has not been done or that something which should not have been done is done. There is absolutely nothing on evidence to show that the treatment given by the opposite parties is deficient or wrong, or that the same is not in accordance with the standard medical protocol. There is no contra evidence to the evidence tendered by RW1 or the medical authorities placed on his behalf. Non furnishing of the treatment records cannot be made a ground to condemn the opposite parties especially because the complainant does not have a case that what is recorded in Ext. A1 to A6 and suggested by Exts. A7 to A10 are not proper, correct or inadequate or that the case sheet contain some different entries. PW1 in cross examination especially in page 4 has admitted the treatment given. Moreover the doctor under whom the complainant underwent further treatment is not examined nor is there any evidence to show that the further treatment was adversely affected or the complainant in any way prejudiced because of that. No reason is given for non-examination of the said crucial witness. In the absence of any expert evidence the submission made on the part of the complainant that negligence is to be presumed on the ground that the implants were missing in some X-rays cannot be accepted especially in view of the law laid down by the Apex Court in Martin F. D’Souza Vs. Mohammed Ishfac, wherein it has been held that the Courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialist. The common evidence and the records in the matter clearly indicate that the opposite parties had treated the complainant bestowing all care, caution and attention, as per the universally accepted standard medical protocol. There is absolutely no evidence, let alone any expert evidence suggesting that the opposite parties did something that a reasonable and prudent doctor would not have done in the given circumstances or that they have omitted to do anything that a reasonable and prudent doctor would have done in the given circumstances. The complainant has failed to prove or establish the allegations of negligence raised by him. The complainant has not established that his alleged sufferings were due to want of average skill on the part of the opposite parties or due to want of care and attention. Thus on an appreciation of the facts, records, evidence and the legal position applicable, indicated as above, no negligence, carelessness or deficiency in service or any unfair trade practice can be attributed to the opposite parties. In the result we find that the opposite parties were not negligent or careless in treating the complainant. Since no negligence has been established this complaint fails and is liable to be dismissed. Issue No.4: In view of the findings on point No.3 above, we hereby dismiss the complaint. In the facts and circumstances of the case, the parties are directed to bear their respective costs. Pronounced in open Court this the 29th day of January 2010. Sd/-President Sd/-Member APPENDIX Documents exhibited for the complainant: A1 Reference Card of I.P. No. 297. A2 Reference Card No. I.P. No.2014. A3 Reference Card of I.P. No.3837. A4 Patients clinical note of O.P.16998. A5 Reference Card of I.P.No.4287. A6 Clinical Note Book (12 pages). A7 Medical bills and examination sheets issued by 2nd opposite party. A8 Cash receipts, Medical bills and examination sheets of KDC hospital. A9 Medical bills, receipts and examination sheets issued by KDC Hospital and Medical College Hospital. A10 X-Ray films. Documents exhibited for the opposite parties: B1 Case sheet . Witness examined for the complainant: PW1 Achu Nair, S/o. Govindan Nair, Tharippur, Kunnathara, Ollooru. Witness examined for the opposite parties: RW1 Dr. C.K.N. Panicker, S/o. Late K.M.K. Panicker, Narayaneeyam, M.N. Rao Road, Calicut. -/True copy/- Sd/-President (Forwarded/by Order) Senior Superintendent.
......................G Yadunadhan
......................Jayasree Kallat | | 
