BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                 Dated this the 29^th of October 2010

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER

                        SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.19/2009

(Admitted on 09.02.2009)

Mr.Arvine Kotian,

So. Mr.Eshwar Kotian,

Aged about 28 years,

RA. Prasad Apartments,

First Floor,

Flat No.4, Bendoorwell,

Mangalore  2.                          …….. COMPLAINANT

(Advocate for the Complainant: Sri.Udayananda A.)

          VERSUS

1. Colaco Hospital,

Represented by its Medical Director,

Bendoorwell, Kankanady,

Mangalore 2.

(Advocate for Opposite Party No.1: Sri.M.P.Shenoy).

2. Dr.Arjun Shetty,

Neuro Surgeon,

Colaco Hospital,

Bendoorwell, Kankanady,

Mangalore – 2.

(Advocate for Opposite Party No.2: Sri.Deenanath Shetty).

3. Dr.Shankar, Neurologist,

Colaco Hospital,

Bendoorwell, Kankanady,

Mangalore – 2.

4. Dr.Deepak Bolar,

Colaco Hospital,

Bendoorwell, Kankanady,

Mangalore – 2.

(Advocate for Opposite Party No.3 & 4: Sri.K.S. Bhat).

5. Dr.Deepak Bhandary,

Colaco Hospital,

Bendoorwell, Kankanady,

Mangalore – 2.

(Advocate for Opposite Party No.5: Sri.Deenanath Shetty).

6. M/s.United India Insurance Company Limited,

No.24, First Floor, Classic Building,

Richmon Road, Bangalore.            ……. OPPOSITE PARTIES

(Opposite Party No.6: Exparte).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging Medical negligence against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant is a permanent resident of Mangalore and he is aged 28 years.  That, after his B.Com graduation in Mangalore, he has secured an employment at Dubai.

  The Complainant submits that, while he was working at Dubai, UAE, he had experienced mild backache.  In the month of June 2007, the Complainant came down to Mangalore and consulted the Opposite Party No.3 Dr.Shankar and enquired about the backache which he has experienced.  The Opposite Party No.3 Dr.Shankar after examining the Complainant and after securing the MRI-Lumbar Spine Report dated 08.06.2007 had advised the Complainant to get admitted to Colaco Hospital Mangalore.  The Complainant got admitted to Opposite Party No.1 Colaco Hospital on 10.06.2007.  That, immediately after the admission, the hospital authorities started Lumbar traction treatment was given to the Complainant up to 13.06.2007.  There afterwards Opposite Party No.3 Dr.Shankar has referred the Complainant to the Neuro Surgeon Dr.Arjun Shetty who is Opposite Party No.2 herein.  Dr.Arjun Shetty after examining the Complainant had advised him to undergo an operation for lumbar disc prolapse, L5 S-1 disc compressing the traversing left S-1 nerve root.  That accordingly, The Opposite Party No.2 had conducted the surgery on the lower back of the Complainant on 14.06.2007 at 6.00 a.m in Opposite Party No.1 hospital.  From the operation theatre the Complainant was brought to post operation room at 9.00 a.m. and there afterwards he was shifted to ward at 11.00 a.m. on 14.06.2007.    There afterwards the Complainant was continued as an inpatient and he was discharged on 18.06.2007 at the advice of the Opposite Parties.

 At the time of discharge from the hospital, Opposite Party No.2 had specifically stated that, operation conducted by him is successful and the condition of the Complainant is better.

It is submitted that, after the discharge from the hospital the Complainant was on medication as prescribed by the Opposite Party No.2.  There afterwards on 16^th July 2007, the Complainant left India to Dubai to join employment at Knights and Walkers and he was serving in the said Company.  In the month of July 2007 itself when the Complainant resumed to his duty he experienced the same mild lower backache but he continued his employment with fond hope that, his pain will be cured after the surgery conducted on him.  The Complainant further submits that, when he experienced severe back pain in the month of August 2007 itself he had contacted Opposite Party No.2 had informed him about the same.  At that time Opposite Party No.2 had stated that, there will be some pain left for some time and that the Complainant will be alright thereafter and there is nothing to worry about the same.  But to the utter surprise of the Complainant, he had experienced severe and intolerable pain day by day.  That, in the meanwhile the Complainant had secured employment at Abudhabi Commercial Bank as Relationship Officer from 13.01.2008.  The Complainant was earning the monthly salary of 5500 Dirham equallent to about Rs.77,000/- per month.  The Complainant submits that, inspite of the operation and treatment conducted by the Opposite Parties the pain in the lower back of the Complainant was increasing day by day.  Because of the severity of the back pain, the Complainant could not even sit and work in his office chamber and also experienced difficulty in walking and also from lifting any normal weight.  That, on account of the acute pain and sufferings the Complainant could not attend his regular duty and ultimately he was forced to quit the job from Abudhabi Commercial Bank on 01.09.2008.  The Complainant has virtually lost his employment and he was bed ridden returned to Mangalore.

It is further submits that, immediately after coming down to Mangalore, the Complainant immediately approached Opposite Party No.2 on 30.10.2008. The Opposite Party No.2 has directed the Complainant to get the MRI report and asked him to approach Dr.Praveen Achar for the said purpose.  Dr.Praveen Achar in turn reported that, there is some metal piece found inside the body of the Complainant and hence MRI could not be secured.  The Complainant was shocked from hearing the same.

It is submitted that, he had immediately approached KMC Hospital, Attavar, Mangalore and consulted Dr.Sohali Ullal, who advised the Complainant to take X-ray.  The Radiologist gave his report dated 08.11.2008.  It is revealed that, a metal piece is lying inside the lumbar region of the Complainant.  The Complainant was completely shocked after hearing the fact that the operation conducted by the Opposite Party No.2 at Colaco Hospital is so negligently and left the metal piece of some broken instrument inside his body and thereafter suppressing the same discharged the Complainant stating that the operation is successful.  The Opposite Parties have not informed about the misdeeds which they have committed in allowing broken part of the metal instrument inside his body which has virtually ruined his future and every danger to his life.

It is submitted that, after coming to know the negligent act of the Opposite Party No.2, the Complainant took the X-ray to Opposite Party No.2, but Opposite Party No.2 was very much reluctant to give any answer but he tried to persuade the Complainant that, nothing will happen to his body and the pain will go by taking one week further rest.  That since the Complainant could not tolerate the intolerable pain; he had approached to renowned Dr.Thimmappa Hegde at Narayana Hrudayalaya Super Specialty Hospital at Bangalore.  At the advice of the doctor, the Complainant secured CT Scan of Lumbar spine.  The CT scan report dated 11.11.2008 show that, ‘a metallic body measuring 1.4cm x 0.6cm x 0.5cm (length x breadth x height) is seen in the left posterolateral aspect of the L5-S1 intervertebral disc space, likely representing surgical material used in prior intervention.  This metallic body projects outside the disc space, by 3-4mm and indenting on anterior thecal sac. 

It is further submitted that, the Opposite Parties have hurriedly conducted the operation without any reason and on account of their gross negligence, left the broken metal instrument inside the lumbar region and sutured the operated wound and discharged the Complainant stating that, the operation is successful.  That even in the discharge summary issued at Opposite Party No.1 does not disclose anything about the remains of metal artifact inside the body of the Complainant.  The Opposite Parties had promised the Complainant that, he can resume to his duty and do his normal work after the operation.  The Opposite Parties have not only negligent in handling the life of the Complainant but also committed professional misconduct in suppressing the truth of the fact that, they have left the metal piece of the surgical instrument inside the body and the Opposite Parties on the other hand tried to suppress the same from the Complainant.

It is submitted that, on account of the sheer medical negligence the Complainant has lost all hope of recovery and he has totally disabled.  The Complainant at his young age has become nothing but a living dead man.

Further submitted that, he was an NRI and after the negligent act of the Opposite Parties, the Complainant could not continue the employment and has lost his lucrative employment and the bright future.  The Complainant was a young and able bodied man was the only source of livelihood to his aged parents.  The aged parents of the Complainant are completely depending on the Complainant for their livelihood.  On account of the negligence committed by the Opposite Parties, the Complainant has lost his employment, income, future prospect of life span and he is virtually made to depend on others.

It is further submitted that, his parents were in search of bride for his marriage, on account of the negligent act of the Opposite Parties and the intolerable pain on the spine the Complainant has lost his marital prospect and happy married life also.  The Complainant cannot lead his future life as a normal human being.

It is submitted that, the surgical operation was conducted by the Opposite Party No.2 on the vital part of the Complainant’s body and negligently left the metal instrument and sutured the wound is only due to the negligence on the part of the Opposite Parties.  The Opposite Parties are brought under the purview of the Consumer Protection Act since the Complainant has availed the service of the Opposite Parties on payment of huge money and the Opposite Parties are negligent hence liable to pay compensation to the Complainant.

It is submitted that, when he came to know about the sheer negligence on the part of the Opposite Parties after consulting the doctors at K.M.C. Hospital, Mangalore and Narayana Hrudayalaya, Super Specialty Hospital at Bangalore, the Complainant’s father had immediately approached the Opposite Party No.1 and requested for the certified copy of the entire case sheet relating to the treatment given to the Complainant.  The Opposite Party hospital though agreed to give the certified copy of the same but they have started harassing the Complainant on one or the other ways and did not give the same as demanded.  The father of the Complainant had submitted a written request to Opposite Party No.1 on 24.12.2008, but the Opposite Party did not give the certified copy of the treatment records/case sheet on the other hand they have issued the endorsement stating that, they are waiting for the consent of the treating doctor Dr.Arjun Shetty.  That, ultimately the Complainant addressed a registered notice with acknowledgement due to Opposite Party No.1 dated 02.01.2009.  The Opposite Party No.1 has received the said registered notice on 07.01.2009.  That, in the meanwhile all the Opposite Parties have connived together and manipulated the original case sheet relating to the treatment given to the Complainant and sent the certified copy of the tampered case sheet to the Complainant.  The Complainant had no other go but to file the consumer complaint against the Opposite Parties.  Hence the above complaint is filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay –

i) Amount incurred towards medical expenses i.e., Rs.1,00,000/-.

ii) Compensation towards pain and suffering and mental agony suffered by the Complainant i.e., Rs.5,00,000/-.

iii) Compensation for loss of income and employment i.e., Rs.5,00,000/-

iv) For further medical treatment and operation i.e., Rs.4,00,000/-.

v) Compensation for loss of marital prospect i.e., Rs.2,00,000/-.

vi) Compensation for permanent disability suffered i.e., Rs.3,00,000/-.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 to 5 appeared through their counsel filed separate version.

Opposite Party No.6 despite of serving notice neither appeared nor contested the case till this date.  Hence, we have proceeded exparte as against the Opposite Party No.6.  The acknowledgement placed before the FORA marked as court document No.1.

Opposite Party No.1 i.e., Colaco Hospital represented by its Medical Director Mangalore submitted that, Opposite Party No.1 is unconnected and unaware of the particulars stated in para No.II (1) of the Complaint.  It is stated that, Opposite Party No.2 Dr.Arjun Shetty is not an employee of the Colaco Hospital and this Opposite Party is no way connected with the Opposite Party No.2 except providing hospital facilities and denied the entire allegations alleged in the Complaint.  It is stated that, upon reference by any of the doctors subject to the availability of medical facilities, Opposite Party No.1 will provide hospital facilities.  When the Complainant was admitted to the Opposite Party No.1 hospital as referred by Opposite Party No.3 the hospital got admitted the Complainant as an inpatient.  The medical treatment was given as per the advice of the doctors of the patient and this hospital provided Para-medical staffs under the guidance, supervision and control of the consultant doctor who will attend to the patient.  This hospital is only provided medical facilities as suggested by the team of doctors and denied the deficiency in service or any medical negligence and contended that this Opposite Party is not liable for any amount claimed in the complaint and there is no negligence on the part of the Opposite Party No.1 in the matter of providing medical facilities and prayed for dismissal of the Complaint.

          Opposite Party No.2 i.e., Dr.Arjun Shetty submitted that, he is not a Neuro Surgeon of Opposite Party No.1, he is a consultant Neuro Surgeon with the qualification of M.S., M.Ch (Neuro) practicing at his independent clinic housed in ‘Shubha Krishna Building’ at Mangalore.  Opposite Party No.2 stated that, the Complainant was afflicted with severe back pain approached Opposite Party No.3, as per the advice of the Opposite Party No.3, Complainant was put on lumbar traction from 11.6.2007 to 13.6.2007.  Since the pain did not subside and he had a history of back pain radiating downwards with (L) SLR 30 degree (L) S1 Numbness (L) Ankle jerk down MRI L5S1 disc herniation revealed in the hospital records.  It is stated that, L5 S1 Disc Excision having become inevitable the Opposite Party No.2 had advised surgical treatment to him.  Hence the Complainant was provisionally posted for L5 S1 disc excision under general anesthesia on 14.06.2007 at 6.00 a.m.  

            It is stated that, during the surgery the disc of the Complainant was decompressed a tip of the disc forceps snapped and broke within the disc space.  This Opposite Party along with his assistants made all efforts to retrieve the broken fragment of the instrument by making use of the variety of forceps as well as other micro instruments even though the broken fragment of the instrument could not be retrieved, the said broken fragment firmly embedded in the disc space.  It is stated that, the Opposite Party No.2 took three hours to complete the surgery by trying to retrieve the broken forceps fragment from the disc space.    It is stated that, prolonged manipulation of the disc space and end plates could lead to disc space infection and lead to injury hence left as it is. Further stated that, the end of the surgery the nerve root was completely free and the metal fragment was embedded deeply and nowhere close to the thecal sac or nerve root and caused positively no pressure on the neural structures.  It is stated that, the Complainant was completely relieved of the symptoms and walked out of the hospital in a pain free condition and without any neurological deflects.  On 18.06.2007 the Complainant was discharged from the Opposite Party No.1 hospital.  It is stated that, the broken metal fragment was unlikely to cause any problem to the patient.   It is stated that, the surgery is successful, if the surgery was not successful the Complainant would not have been able to walked out of the hospital totally in a pain free condition on his discharge from the Opposite Party hospital.

It is further stated that, on 14.06.2007 Opposite Party No.2 had personally informed the father of the Complainant Mr.Ishwar Kotian as to the non-removal of the broken fragment of Rongeur and the same could not be retrieved because of the same being firmly embedded in the disc space despite best efforts of Opposite Party No.2 and his assistants during the surgery.  It is stated that, the Opposite Party No.2 had made an entry in the hospital records and also stated that, the Opposite Party No.2 had personally informed the Complainant in the presence of his father as to the non-removal of the broken fragment of Rongeur.  It is stated that, the presence of the sterile fragment of Rongeur has neither caused any ill effect to the body of the Complainant nor endangered his life in any way and contended that there is no negligence on the part of the Opposite Party No.2 and prayed for dismissal of the complaint.

          Opposite Party No.3 and 4 one Dr.Shanker and Dr.Deepak Bolar stated that, the Complainant had approached the Opposite Party No.3 in early June 2007 in his clinic complaining about the back pain.  The Complainant was given conservative treatment and necessary medicines for back ache.  As the ache continued to persist, suspecting the same to be intervertebral disc prolapse, advised him to undergo MRI testing of Lumbosacral area and the same was done on 08.06.2007.  The MRI report disclosed the disc prolapsed, Opposite Party No.3 advised the Complainant to get admitted to any hospital of his choice.  The Complainant got admitted at Opposite Party No.1 hospital and underwent Lumbar Traction under the guidance of physiotherapist.  As the pain continued to persist the Opposite Party No.3 referred the Complainant to Opposite Party No.2, who is a Neuro Surgeon.

          It is stated that, the Opposite Party No.2 accordingly conducted surgery on lower back of the Complainant on 14.06.2007 at Opposite Party No.1 hospital.  During the post operation Opposite Party No.3 and his assistant Opposite Party No.4 had visited the Complainant at Opposite Party No.1 hospital to verify if the Complainant had any neurological complaints and advised medicines till he was discharged on 18.06.2007.

     It is stated that, these Opposite Parties were not associated in the surgery and not aware of the fact that on 30.10.2008 the Complainant had visited Opposite Party No.2 or Dr.Praveen Achar or any other treatment taken by the Complainant in any hospital.  It is denied that, Opposite Party No.3 and 4 have connived together and manipulated the original case sheet relating to the treatment of the Complainant.  It is contended that, there is no negligence whatsoever as stated by the Complainant and prayed for dismissal of the complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether Complainant proves that the Opposite Parties are guilty of medical negligence which amounts to deficiency in service and consequentially liable to pay damages to the Complainant?
2. What order?

4.         In support of the complaint, Sri.Arvine Kotian (CW1) filed affidavit reiterating what has been stated in the complaint and subjected him for cross-examination.  One Dr.Sohali Ullal (CW2) – Radiologist at K.M.C. Hospital Mangalore, one Dr.Praveen Achar (CW3) – Radiologist at Institute of Magnetic Resonance Imaging Limited Mangalore, one Dr.Suresh Mankar (CW4) – Professor of Surgery at Yenepoya Hospital Mangalore – summoned witnesses of the Complainant were examined and cross-examined by the learned counsels for the parties.  Ex C1 to C15 were marked for the Complainant as listed in the annexure.   One Dr.Krishna M. Gokhale (RW1), Administrator at Opposite Party No.1 hospital, one Dr.Arjun Shetty (RW2) – Opposite Party No.2, one Dr.N.Shanker (RW3) – Opposite Party No.3,  one Dr.Ajith Kumar Shetty (RW4) – Orthopaedic Surgeon at Tejaswini Hospital – witness of the Opposite Party No.2, one Dr.Avanish Bhandary (RW5) – Anaesthetist – Opposite Party No.5, one Dr.Vikram Shetty (RW6) – Consultant Craniofacial Surgeon at Nitte Meenakshi Institute of Craniofacial surgery, Deralakatte – witness of the Opposite Party No.2 and one Dr.Muralidhar Pai (RW7) – Professor of Neurosurgery at KMC Hospital – witness of the Opposite Party No.2 filed counter affidavits and cross-examined by the learned counsel for the parties. Ex R1 to R3 were marked for the Opposite Parties as listed in the annexure.   Complainant and Opposite Party No.2 produced notes of arguments along with citations.   

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

             Point No.(i): Affirmative.

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

Reasons

5.  Point No. (i) and (ii):

The main allegations of the complainant in short, that the Complainant who was working in abroad had mild back ache in the month of June 2007, came down to India and consulted Opposite Party No.3 i.e., Dr.Shanker, who is a consultant Neurologist, after the diagnosis the Complainant got admitted to Opposite Party No.1 hospital on 10.06.2007, underwent Lumbar traction treatment upto 13.06.2007.  Even after the said therapy pain persisted, Opposite Party No.3 i.e., Dr.Shankar has referred the Complainant to the Neuro Surgeon Dr.Arjun Shetty i.e., Opposite Party No.2.  The Opposite Party No.2 after examining the Complainant had advised him to undergo L5 S-1 Disc Excision Operation.   Accordingly the operation was conducted on 14.06.2007 in Opposite Party No.1 hospital at 6.00 a.m by Opposite Party No.2 and he was discharged on 18.06.2007 at the advice of the Opposite Parties (i.e., as per Ex C1). 

It is further stated that, at the time of discharge or prior to discharge, Opposite Party No.2 neither informed the Complainant or his father with regard to the metal artifact (‘artifact’ means piece) left in his operation region nor they disclosed in discharge summery.  It is stated that, after discharge from the hospital, the Complainant was on medication as prescribed by the Opposite Party No.2, thereafter, on 16^th July 2007, the Complainant left India to Dubai to join employment as he was working earlier.  In the month of July 2007, when the Complainant resumed to his duty, he experienced the same mild lower backache but continued his employment with the hope that pain will subside, but he had experienced severe and intolerable pain day by day and because of the severity of the back pain, the Complainant could not sit and work in his office and also experienced difficulty in walking and lifting any normal weight.  On account of the acute pain and sufferings, the Complainant could not attend his regular duties and ultimately he quit the job from Abudhabi Commercial Bank on 01.09.2008 and he was bed ridden, then thereafter he had come down to Mangalore and approached Opposite Party No.2 on 30.10.2008 for the second time. The Opposite Party No.2 has directed the Complainant to get the MRI report and issued a reference letter to one Dr. Praveen Achar i.e., CW3, accordingly Complainant approached Dr.Praveen Achar.  Dr.Praveen Achar issued an endorsement that, “MRI could not be performed due to excision ?  metallic artifact in the lumbosacral region”.  Thereafter the Complainant was completely shocked. Immediately Complainant approached the KMC hospital and consulted Dr.Sohali Ullal i.e., CW2 who advised the Complainant to take X-ray and the radiologist gave his report dated 8.11.2008 i.e., Ex C4 revealed that “radio-opacity in the posterior disc space extending into the spinal canal causing narrowing of the same”.  Thereafter,  the Complainant approached one more doctor i.e., Dr.Thimmappa Hegde at Narayana Hrudayalaya Super Specialty Hospital Bangalore, at the advice of the doctor, the Complainant secured CT Scan of Lumbar spine, the CT scan report dated 11.11.2008 i.e., Ex C5 reveals that, ‘a metallic body measuring 1.4cm x 0.6cm x 0.5cm (length x breadth x height) is seen in the left posterolateral aspect of the L5-S1 intervertebral disc space, likely representing surgical material used in prior intervention.  This metallic body projects outside the disc space, by 3-4mm and indenting on anterior thecal sac’.  It is stated that, only after getting the above detailed report Complainant came to know that Opposite Party No.2 on account of his sheer medical negligence left metal artifact and because of the misdeeds Complainant developed complications and made him to quit the job due to severe pain. The Complainant was a young man aged 28 years and he is only source of livelihood to his aged parents.  On account of the negligence committed by the Opposite Parties, the Complainant has lost his employment, income, future prospect of life and he is virtually made to depend on others, hence he came up with this complaint.

 The another allegation of the Complainant sworn to the fact that, when the Complainant and his family came to know about the above facts, the father of the Complainant immediately approached the Opposite Party No.1 hospital and requested for the certified copy of the entire case sheet relating to the treatment given to the Complainant.  The Opposite Party hospital though agreed to give the certified copy of the same but they have started harassing the Complainant and his father on one or the other reasons and did not give the same.  The father of the Complainant had submitted written request to Opposite Party No.1 on 24.12.2008 as per Ex C8 but the Opposite Party hospital did not give the certified copy of the treatment records/case sheet.  On the other hand, they have issued an endorsement stating as follows: “Copy of case sheet is ready, but we are waiting for consent of treating Doctor Dr.Arjun Shetty, same can be given after getting consent”.  Ultimately, the Complainant addressed a registered notice with acknowledgement to Opposite Party No.1 dated 02.01.2009 (i.e., Ex C9).  The Opposite Party has received the registered notice on 07.01.2009 (i.e., as per Ex C10).  That in the meanwhile, the Opposite Parties have connived together and manipulated the original case sheet relating to the treatment given to the Complainant and sent the certified copy of the tampered case sheet to the Complainant.

On the contrary, all Opposite Parties interalia denied the medical negligence and contended as follows:-

 Opposite Party No.1 i.e., the hospital contended that, they were only responsible for providing hospital care as directed by the patient/ physician/surgeon.  The Complainant himself consulted to get himself operated from Opposite Party No.2 i.e., Neuro surgeon vide written consent i.e., Ex C11 (2) and contended that as far as nursing service is concerned, there is no deficiency, so complaint against them is not maintainable.

 Opposite Party No.2 who is a Neuro Surgeon who conducted the surgery contended that, the Complainant underwent Endoscopic L5 S-1 Disc Excision operation at 6.00 a.m. at Opposite Party No.1 hospital.  During the course of the surgery the tip of the forceps (as per medical dictionary ‘forceps’ means it is a tweezer like instrument used for handling tissues during operation and dressing) used in the surgery broke and firmly got embedded in between disc space of the Complainant.  He along with his assistants exercised their diligent efforts to retrieve the broken fragment (as per medical dictionary ‘fragment’ means a part broken off, a small detected portion or a part of remnant) by using variety of forceps as could not be exercised even under fluoroscopy.  It is further raised a contention that, after the surgery the Complainant had recovered well from anesthesia and had been shifted to ward and he had personally informed to the Complainant in post operative room on 14.06.2007 at around 10.00 a.m. as to the non-removal of the broken fragment in the presence of nurses and also personally informed the Complainant in the presence of his assistant as to the non-removal of the broken piece of the forceps.  And it is further contended that, he had prepared the operation notes on 14.06.2007 itself soon after the surgery.  The Complainant is relieved of the pain and felt confident enough to return his job in Gulf and contended that, the Complainant was free from all discomfort and the surgery was performed by him exercising of almost care and diligence and extra ordinary skill and care but breaking of the forceps during conducting of the surgery is not within the control of the surgeon and contended that there is no deficiency and negligence on his part.

Opposite Party No.3 and 4 i.e., consultant neurologist and his assistant contended that, the Complainant had approached in early June 2007 in Opposite Party No.3 clinic complaining about the back ache.  On the first consultation, the Complainant was given conservative treatment and necessary medicines. Opposite Party No.3 advised the Complainant to get admitted to any hospital of his choice.  The Complainant got admitted at Opposite Party No.1 hospital and underwent Lumbar Traction, I.F.T., S.W.D, under the guidance of Mr.Cherian, physiotherapist.  As the pain continued to persist even after the said therapy, Opposite Party No.3 referred the Complainant to Opposite Party No.2, who is a Neuro Surgeon.  On examining the Complainant by Opposite Party No.2 suggested him to undergo surgery.  The Complainant on 14.06.2007 at Opposite Party No.1 hospital undergone L5 S-1 Disc Excision surgery and stated that Complainant was discharged on 18.06.2007 (as per Ex C1) thereafter the Complainant did not meet these Opposite Parties and they are not aware of the fact that the Complainant again visited Opposite Party No.2 or other hospital or metal artifact left inside the lumbar region.  Further it is stated that, the case sheet is maintained in Opposite Party No.1 hospital and not with these Opposite Parties and the surgery was not conducted by these Opposite Parties and contended that there is no negligence on their part.

We have heard the learned counsels for the Complainant and Opposite Parties and have given our thoughtful consideration to their respective submissions.  On the basis of the rival contentions raised by the parties as well as oral and documentary evidence available on the file of this FORA, the following points emerges for consideration are that, (1) Whether the Complainant proves that, Opposite Party No.2 has conducted the surgery on the lumbar spine of the Complainant at Colaco Hospital Mangalore on the above said day and left metal artifact during the course of the surgery? (2) Whether Opposite Parties are guilty of tortuous act of negligence amounting to deficiency in service and consequently liable to pay damages to the Complainant?  (3) Whether the Opposite Party No.2 proves that, he has informed the Complainant or his relatives relating to the alleged broken surgical instrument deeply embedded into the spinal cord of the Complainant either orally or in writing?  (4) If so, whether the Opposite Party No.2 had advised the Complainant the future course of action is to be taken by the Complainant by issuing a discharge summary and the follow up treatment or with regard to one more surgery (correction surgery)  to remove the metal artifact from the body of the Complainant?

 At the outset, we noticed that, most of the facts in regard to the treatment of Arvine Kotian i.e., the Complainant at different stages before the surgery with the Opposite Party No.3 and at Opposite Party No.1 hospital and also about he having undergone L5 S-1 Disc Excision operation on 14.06.2007 at Opposite Party No.1 hospital performed by Opposite Party No.2 is not in dispute.

However, going by the written version of defence filed on behalf of Opposite Party No.2, the factum of leaving metal artifact left inside the lumbar region of the Complainant at the time of surgery was admitted. But the Opposite Party No.2 tried to attribute that during the course of the surgery the forceps was cut, that breaking of the forceps during course of the surgery is not within the control of the surgeon and the same was informed to the Complainant as well as his father.  Since it is a highly sterilized instrument, there is no harm to the Complainant even if it is left as it is.  According to the Opposite Party No.2, he cannot put a force to remove the same it may cause further damage to the Complainant’s life.  Hence he left as it is and contended that there is no negligence.

However, in this regard, it is necessary to refer the allegations made in the complaint and the defence put forwarded on behalf of the Opposite Party No.2 and others in their written versions in greater detail. The main allegation of negligence/deficiency in service on the part of the hospital and the surgeon was that, at the time of performing the surgical procedure for L5 S-1 Disc Excision Operation on 14.06.2007, metal artifact was left in the lumbar region of the patient, as a result of which he developed complications/persisting pain in the lumbar region and he could not walk, sit for a long time and thereby he has lost his job in abroad and returned to India.  Thereafter, immediately i.e., on 30.10.2008 for the second time the Complainant consulted Opposite Party No.2.  Opposite Party No.2 in turn advised the Complainant to take MRI (‘Magnetic Resonance Imaging’), only at that time Complainant  came to know the above misdeeds committed by the surgeon thereby he lost his future and is permanently disabled.

However in order to prove the Complainant’s case, he himself examined as CW1 and also examined three other doctors with whom he consulted i.e., CW2 to CW4 and produced Ex C1 to C15.   Opposite Parties also examined RW1 to RW7 and produced Ex R1 to R3.

On scrutiny of the oral and documentary evidence produced by the parties, it is proved beyond doubt that Opposite Party No.2 committed a negligence in this case by leaving a metal artifact in the operated region of the Complainant on 14.06.2007.  And further we observed that, despite leaving the metal artifact, Opposite Party No.2 not informed the same to the Complainant or his relatives either at the time of discharge or before the discharge.  Because, we have perused the discharge summary (i.e., Ex C1) issued by the Opposite Party No.1 hospital reads thus:-

Colaco Hospital

Unit of ICMCH Trust

Bendore, Mangalore – 575 002.

Name: Mr.Arvine Kotian

Age: 26 years    Sex : Male    Admission No.62260

Admitted on 10.06.2007

Discharged on 18.06.2007

Physician/Surgeon   : Dr.Shanker.

               Reference   : Dr.Arjun Shetty.

Complaints:

            Low backache c radiating pain towards the right side.

History:

Clinical Examination: OT: BP – 130/80 mm …..

                                    Pulse: 80 ….

                                       ……

Investigations:

Diagnosis:

            MRI – L5 S1 disc herniation c compression of left root.

Treatment Given: L5 S1 disc excision done ……………..

     ………………….

     …………………

Condition on Discharge:

                        Better

Advice/followup:

     As per the prescription

                                                                    Sd/-

                                                                        For (Dr.Shankar)

 The discharge summary which gives detailed descriptions of the condition is in proceedings prior to operation and after the operation.  A reading of Ex C1 would show that either Opposite Party No.1 or Opposite Party No.2 not disclosed the metal artifact left inside the body of the Complainant or any future course of treatment.  At the time of discharge condition of the Complainant reported to be better.  The report concludes with an advice which includes “as per the prescriptions”.  However, we have noticed that, Opposite Party No.1 deposed before the FORA that, ¦æ¹Ìç¥Àë£ï£À°è £Á£ÀÄ K£ÀÄ ¸À®ºÉ ªÀiÁrgÀÄvÉÛÃ£É JAzÀÄ ºÉüÀ®Ä ¸ÁzsÀå«®è. It is settled position that, the prescription always includes medicines prescribed by the doctors and not otherwise.  The above discharge summary is the very vital document as far as the treatment is concerned which includes all the details.  The above document coupled with the evidence of CW1 and other evidence available on record proved beyond doubt that Complainant was not aware of the metal artifact left by the Opposite Party No.2 i.e., the surgeon in this case at the time of discharge or before the discharge.

In order to prove that, metal artifact or surgical instrument left by the Opposite Party No.2 during the course of the surgery, Complainant produced Ex C3 to C5.

The Ex C3 i.e., a reference letter dated 31.10.2008 issued by the surgeon Dr.Arjun Shetty addressed to Dr.Praveen Achar i.e., CW3, the same has been reproduced as under:

From:

Dr.Arjun  Shetty,

M.S., M.Ch (Neuro)

Consultant Neurosurgeon

To:

Dr.Praveen Achar,

IMRI.

            Mr.Arvine has been operated for a lumbar disc prolapse one year ago, he has come with recurrance of symptoms.

Would you be so kind as to do a limited MRI L.S.Spine plain and contrast for him.

            Thank you,

                                                                                                        Sd/-

                                                                             (Dr.Arjun Shetty)

The above letter indicates that when the Complainant approached Opposite Party No.2 for the second time with pain on 30.10.2008, the Opposite Party No.2 referred the Complainant to Dr.Praveen Achar to get the limited MRI. Dr.Praveen Achar in turn issued an endorsement.  The same has been reproduced herebelow;

“MR Imaging could not be performed due to excision ? metallic artifact in the lumbar region.  

Inconvenience regretted.

                                                            Sd/-

                                                Dr.Praveen Achar

 The above endorsement addressed to Dr.Arjun Shetty by Dr.Praveen Achar clearly reveals that, Dr.Praveen Achar could not perform the MRI because of the metal artifact. It is significant to note that, if at all, the surgeon aware of the metal artifact or alleged broken forceps as contended by him, then why did he send the Complainant for MRI report?  A prudent surgeon will never send the patient whose body is embedded with the metal piece/alleged broken forceps for MRI report.  A sensible surgeon will always send such patient for CT scan report and not for MRI report.  It is well known fact, that MRI word itself discloses that it is a Magnetic Resonance Image, when the body is embedded with metal piece as the case of Complainant, no prudent doctor will refer for MRI.  Because, it may not reveal the presence of the metal artifact embedded/left inside the human body and it may cause further damage to the patient due to high magnetic power.   Apart from the above, Opposite Party No.2 in his evidence admitted that, 0iÀiÁªÀÅzÉà gÉÆÃV0iÀÄ zÉúÀzÉƼÀUÉ ªÉÄl¯ï Dnð¥sÁåPïÖ  CxÀªÁ ¥sÁj£ï ¨Ár EzÁÝUÀ JA.Dgï.L. EªÉÄÃeï §gÀÄvÀÛzÉ.  DzÀgÉ D ªÉÄmÁ°Pï N¨ÉÓPïÖ£À°è ªÀiÁåUÉßnPï CA±À«gÀĪÀÅzÀjAzÀ CzÀÄ ¸Àj0iÀiÁV PÀAqÀħgÀĪÀÅ¢®è.  F jÃw ªÉÄl¯ï N¨ÉÓPïÖ EzÀÝAvÀºÀ gÉÆÃV0iÀÄ JPïìgÉÃ0iÀÄ£ÀÄß vÉUÉzÁUÀ D N¨ÉÓPïÖ PÀAqÀħgÀÄvÀÛzÉ JAzÀgÉ ¸Àj.   The above part of the admission itself shows that taking MRI in a case like this will not serve the purpose. So inference can be drawn that Opposite Party No.2 despite of leaving the surgical instrument took a summersault defence to hush-up his case if possible. In the repetition, we again reiterate that being a prudent surgeon should not have referred the patient/Complainant for MRI if at all he was aware of the above misdeed. 

Further Complainant has referred to X-ray report dated 08.11.2008 i.e., Ex C4, the same has been reproduced herebelow: 

KMC HOSPITALS

Mangalore

DEPARTMENT OF RADIODIAGNOSIS

X-RAY REPORT FORM

Name: Arvine                   Age 28 years        Sex M            X-ray No.14860

Ref. Consultant: DR.

Part Examined: L-S …… (AP/Lat)

                                                            Report

………………………………….

…………………………………

……………………………….

Mild reduction of L5-S1 intervertebral disc space with well defined radio-opacity in the posterior disc space extending into the spinal canal, causing narrowing of the same.

…………………………….

………………………………

Imp:- Post operative case of L5-S1 intervertebral disc prolapsed.  Present radiograph ……

Mild reduction of L5-S1 intervertebral disc space with well defined radio-opacity in the posteriorly and extending into the spinal canal.

                                                                                                Sd/-

                                                                                       Radiologist

 The above X-ray report further supports the case of the Complainant that, well defined radio-opacity in the posterior disc space.  The same is not denied by the Opposite Parties. 

Apart from the above, Complainant referred to the CT scan of the lumber spine report dated 11.11.2008 i.e., Ex C5 indicates as follows (reproduced as it is):

Narayana Hrudayalaya

Patient Name     : Mr.Arvine Kotian

Age                  : 27 years,

                                                CT SCAN OF LUMBAR SPINE

Clinical details: H/o back pain and left lower limb pain.  Past H/o surgery, details unavailable.

Technique: Helical 0.6 mm sections with 0.6 mm table increments was performed through the lumbar spine from L1 to S3 level.

Findings and impression:

There is mild straightening of the lumbar spine.  The lumbar vertebral bodies show normal bone density.

A metallic body measuring 1.4cm x 0.6cm x 0.5cm (length x breadth x height) is seen in the left posterolateral aspect of the L5-S1 intervertebral disc space, likely representing surgical material used in prior intervention.  This metallic body projects outside the disc space by 3-4mm and indenting on anterior thecal sac. 

The disc height is maintained.  A large posterior marginal osteophyte is seen arising from the left inferolateral aspect of the L5 vertebral body causing moderate neural foraminal compromise at this level.  Right neural foramina is normal.

Minimal degenerative changes of the lumbar vertebral bodies are seen in the form of minimal endplate sclerosis and irregularity.  Tiny anterior marginal osteophyte is seen arising from the L2 vertebral body.

The rest disc heights in the lumbosacral spine are maintained.  There is no significant spinal canal/other neural foraminal stenosis.  The bilateral facet joints also appear normal at all levels.

    Sd/-                                                                                                                                Sd/-

Dr.Monali                                                                                                                             Dr.Dayananda L, DNB

Resident                                                                                                                             Consultant Radiologist

From the above report it is very clear that, there is a metallic body measuring 1.4cm x 0.6cm x 0.5cm (length x breadth x height) is seen in the left posterolateral aspect of the L5-S1 intervertebral disc space, likely representing surgical material used in prior intervention. By producing all the above documents coupled with oral evidence made us very clear that on 14.06.2007 during the course of the surgery conducted by Opposite Party No.2 left some surgical instrument inside the operated region is proved.

 Further Complainant by producing the discharge summary, it is shown to us that the Opposite Party No.2 i.e., Neuro surgeon despite of leaving the surgical material/metal in operated region while conducting the first surgery on 14.06.2007 not informed/disclosed to the Complainant or his relatives.  The act and conduct of the surgeon shows that, he acted without any reasonable degree of care and diligence which be a least that the Complainant is expected from him.  By having acted carelessly in a manner which is not expected of a medical practitioner and accordingly he has committed medical negligence by leaving surgical instrument inside the lumbar region of the Complainant.  We are cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the Complainant by making out a case of negligence on the part of the Opposite Parties, the onus then shifts on to the doctors / hospital to satisfy the FORA that there was no lack of care or diligence.  [(2004) Volume IV CPJ Page 40 Supreme Court].

However, we have noticed that, the Opposite Party No.2 i.e., a Neuro surgeon besides taking certain preliminary objections in regard to his liability to pay any compensation, took inconsistent/contradictory pleas.  Opposite Party No.2 contented that, the Complainant underwent Endoscopic L5 S-1 Disc Excision Operation at 6.00 a.m. at Opposite Party No.1 hospital.  During the course of the surgery the tip of the forceps used in the surgery broke and firmly got embedded in between disc space of the Complainant.  He along with his assistants exercised their diligent efforts to retrieve the broken fragment by using variety of forceps as could not be exercised even under fluoroscopy.  It is further raised a contention that, after the surgery the Complainant had recovered well from anesthesia and had been shifted to ward and he had personally informed to the Complainant in post operative room on 14.06.2007 at around 10.00 a.m. as to the non-removal of the broken fragment in the presence of nurses and also personally informed the Complainant in the presence of his assistant as to the non-removal of the broken piece of the forceps and contended that, he had prepared the operation notes on 14.06.2007 itself soon after the surgery.  The Complainant is relieved of the pain and felt confident enough to return to his job in Gulf and contended that, the Complainant was free from all discomfort and the surgery was performed by him exercising of almost care and diligence and extra ordinary skill and care but breaking of the forceps during conducting of the surgery is not within the control of the surgeon and contended that there is no deficiency or any negligence on his part and deposed as under (some important part of the deposition) reproduced herein below:

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±À¸ÀÛçaQvÉì ªÀiÁqÀĪÁUÀ CgÀ«£ï PÉÆÃmÁå£ï£À zÉúÀzÉƼÀUÉ ¸ÀfðPÀ¯ï E£ïµÀÄÖçªÉÄAmï PÀmÁÖV CzÀÄ zÉúÀzÀ°è G½zÀÄPÉÆArgÀÄvÀÛzÉ JAzÀÄ §gÀªÀtÂUÉ0iÀÄ°è ¦0iÀiÁðzÀÄzÁgÀjUÉ CxÀªÁ CªÀgÀ vÀAzÉ F±ÀégÀ PÉÆÃmÁå£ïUÁUÀ°Ã ¸ÁQë0iÀÄÄ ºÉüÀÄvÁÛgÉ £Á£ÀÄ ¦æ¹Ìç¥Àë£ï£À£ÀÄß CgÀ«£ï PÉÆÃmÁå£ïUÉ ¤ÃrgÀÄvÉÛãÉ.  DzÀgÉ F ªÉÄð£À «µÀ0iÀĪÀ£ÀÄß D ¦æ¹Ìç¥Àë£ï£À°è §gÉ¢gÀÄvÉÛãÉÆà E®èªÉÇà JAzÀÄ £À£ÀUÉ UÉÆwÛ®è.  £Á£ÀÄ CgÀ«£ï PÉÆÃmÁå£ïUÉ ¦æ¹Ìç¥Àë£ï£À£ÀÄß D¸ÀàvÉæ¬ÄAzÀ ©qÀÄUÀqÉ ºÉÆAzÀĪÁUÀ ¤ÃrgÀÄvÉÛãÉ.  £Á£ÀÄ ¦æ¹Ìç¥Àë£ï ¤ÃrgÀĪÀ §UÉÎ r¸ïZÁeïð ¸ÀªÀÄäj0iÀÄ°è ¸ÀºÀ PÀAqÀħgÀÄvÀÛzÉ.  ¦æ¹Ìç¥Àë£ï£À°è £Á£ÀÄ K£ÀÄ ¸À®ºÉ ªÀiÁrgÀÄvÉÛÃ£É JAzÀÄ ºÉüÀ®Ä ¸ÁzsÀå«®è.  ¦0iÀiÁðzÀÄzÁgÀjUÉ 0iÀiÁªÀÅzÉà jÃw0iÀÄ ¦æ¹Ìç¥Àë£ï£À£ÀÄß ¤ÃqÀ¯Éà E®è JAzÀgÉ ¤ªÀÄä ¸À®ºÉ ¸Àj0iÀÄ®è.  gÉÆÃVUÉ MAzÀÄ ¥ÀPÀëzÀ°è D £ÉÆêÀÅ ªÉÄmÁ°Pï object embedded in the disc space £À ¸ÀܼÀ¢AzÀ ¤¢ðµÀÖªÁV £ÉÆêÀÅ PÀAqÀħAzÀ°è CAvÀºÀ gÉÆÃVUÉ jJPïì¥ÉÇèÃgÉõÀ£ï ªÀiÁqÀ§ºÀÄzÀÄ.  gÉÆÃV0iÀÄÄ D¸ÀàvÉæ¬ÄAzÀ r¸ïZÁeïð DzÀ £ÀAvÀgÀzÀ°è £Á£ÀÄ £ÉÆÃrgÀÄvÉÛãÉÆà E®èªÉÇà JAzÀÄ ºÉüÀ®Ä ¸ÁzsÀå«®è.  £Á£ÀÄ ¦0iÀiÁðzÀÄzÁgÀgÀ vÀAzÉ F±ÀégÀ PÉÆÃmÁå£ïUÉ ¢.14.06.2007 ¸ÀĪÀiÁgÀÄ 10.00 J.JA.UÉ post operative room £À°è non-removal of the broken fragment F «µÀ0iÀĪÀ£ÀÄß PÀ«vÁ gÉõÁä r¸ÉÆÃd, ¸ÁÖ¥sï £À¸ïð CªÀgÀ ¸ÀªÀÄPÀëªÀÄ ºÉýgÀÄvÉÛÃ£É J£ÀÄߪÀ «µÀ0iÀĪÀ£ÀÄß §gÀªÀtÂUÉ0iÀÄ°è ¤ÃqÀ°®è JAzÀgÉ ¸Àj. 

¸ÀfðPÀ¯ï E£ïµÀÄÖçªÉÄAmï 0iÀiÁªÀ PÁgÀtPÉÌ vÀÄAqÁ¬ÄvÀÄ J£ÀÄߪÀ §UÉÎ PÉÃ¸ï ²Ãn£À°è £Á£ÀÄ §gÉ0iÀÄ°®è.  F D¥ÀgÉõÀ£ï£À°è D¥ÀgÉõÀ£ï ªÀiÁqÀĪÀAvÀºÀ E£ï¸ÀÄÖçªÉÄAmï D¸ÀàvÉæ¬ÄAzÀ ¤ÃqÀ°®è.  CzÀÄ £À£Àß E£ïµÀÄÖçªÉÄAmï DVvÀÄÛ.  D¥ÀgÉõÀ£ï ªÀiÁqÀĪÁUÀ vÀÄAqÁzÀAvÀºÀ ¸ÀfðPÀ¯ï E£ïµÀÄÖçªÉÄAmï£À ¨sÁUÀ £À£Àß §½ EzÉ.  £Á£ÀÄ CzÀ£ÀÄß £Áå0iÀiÁ®0iÀÄPÉÌ ºÁdj¸À§ºÀÄzÀÄ.  vÀÄAqÁzÀ  ¸ÀfðPÀ¯ï E£ïµÀÄÖçªÉÄAmï 0iÀiÁªÀ ¨ÁæAqÉqï PÀA¥À¤UÉ ¸ÉÃjzÀÄÝ JAzÀÄ vÉÆÃj¸À®Ä £À£Àß°è zÁR¯É EzÉ. CzÀ£ÀÄß £Áå0iÀiÁ®0iÀÄPÉÌ ºÁdj¸À§ºÀÄzÀÄ.  Operation procedure £À°è «Ä¤ªÀįï E£Ééùªï ¥ÉÇæ¹Ãdgï J£ÀÄߪÀ ¥ÉÇæ¹Ãdgï EgÀÄvÀÛzÉ.  CzÉãÉAzÀgÉ under this procedure the risk of re-exploration will be much less than in a person who has undergone a laminonecmy  procedure.  Minimal invasion procedure ªÀÄÆ®PÀ exploration ªÀiÁqÀ§ºÀÄzÀÄ JAzÀÄ gÉÆÃVUÉ §gÀªÀtÂUÉ0iÀÄ ªÀÄÆ®PÀ ¤ÃqÀ°®è.

¦0iÀiÁðzÀÄzÁgÀjUÉ CªÀgÀ ¨É£ÀÄߪÀÄƼÉ0iÀÄ°ègÀĪÀ ªÉÄl¯ï Dnð¥sÁåPïÖ (vÀÄAqÁzÀ E£ï¸ÀÄÖçªÉÄAmï£À ¨sÁUÀ) ªÀ£ÀÄß ºÉÆgÀvÉUÉ0iÀĨÉÃPÁzÀgÉ E£ÉÆßAzÀÄ D¥ÀgÉõÀ£ï ªÀiÁqÀ¨ÉÃPÀÄ CAzÀgÉ ¸Àj.  ¦0iÀiÁðzÀÄzÁgÀgÀ zÉúÀzÀ M¼À¨sÁUÀzÀ°è G½¢gÀĪÀAvÀºÀ ªÉÄmÁ°Pï Dnð¥sÁåPïÖ CzÀ£ÀÄß ºÉÆgÀPÉÌ vÉUÉ0iÀÄzÉà EzÀÝ°è E£ï¥sÉPÀë£ï DUÀĪÀ ¸ÀA¨sÀªÀ EgÀÄvÀÛzÉ CAzÀgÉ £À£Àß ¥ÀæPÁgÀ CAvÀºÀ infection minimal risk of infection DUÀ§ºÀÄzÀÄ. 

¢£ÁAPÀ:30.10.2008gÀAzÀÄ ¦0iÀiÁðzÀÄzÁgÀgÀÄ £À£Àß §½UÉ §AzÀÄ ¯ÉÆèÁåPï KPï EzÉ JAzÀÄ ºÉýgÀÄvÁÛgÉ.  30.10.2008gÀAzÀÄ £Á£ÀÄ qÁ.¥Àæ«Ãuï DZÁgïgÀªÀjUÉ C«ð£ï PÉÆÃmÁå£ïUÉ JA.Dgï.L ªÀiÁqÀĪÀ §UÉÎ ¥ÀvÀæªÀ£ÀÄß ¤ÃrzÉÝãÉ.  F ªÉÄð£À zÁR¯É0iÀÄ°è ¦0iÀiÁðzÀÄzÁgÀgÀ zÉúÀzÀ°è ªÉÄmÁ°Pï Dnð¥sÁåPïÖ §UÉÎ £ÀªÀÄÆ¢¸À°®è JAzÀgÉ ¸Àj. 0iÀiÁªÀÅzÉà gÉÆÃV0iÀÄ zÉúÀzÉƼÀUÉ ªÉÄl¯ï Dnð¥sÁåPïÖ  CxÀªÁ ¥sÁj£ï ¨Ár EzÁÝUÀ JA.Dgï.L. EªÉÄÃeï §gÀÄvÀÛzÉ.  DzÀgÉ D ªÉÄmÁ°Pï N¨ÉÓPïÖ£À°è ªÀiÁåUÉßnPï CA±À«gÀĪÀÅzÀjAzÀ CzÀÄ ¸Àj0iÀiÁV PÀAqÀħgÀĪÀÅ¢®è.  ……………………………… F jÃw ªÉÄl¯ï N¨ÉÓPïÖ EzÀÝAvÀºÀ gÉÆÃV0iÀÄ JPïìgÉÃ0iÀÄ£ÀÄß vÉUÉzÁUÀ D N¨ÉÓPïÖ PÀAqÀħgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. 

ºÁ¹àl¯ï£À°è PÉÃ¸ï ²Ãl£ÀÄß £À£Àß gÉÆÃVUÉ ¸ÀA§AzsÀ¥ÀlÖzÀÄÝ DzÀ°è £À£Àß M¦àUÉ0iÀÄ£ÀÄß ¥ÀqÉzÀÄPÉƼÀî¨ÉÃPÉAzÀÄ ¸À®ºÉ0iÀÄ£ÀÄß ¤ÃrgÀĪÀÅ¢®è.  £Á£ÀÄ 14.06.2007gÀAzÀÄ N.n. £ÉÆÃl£ÀÄß ºÁ¹àl¯ï£À zÁR¯É0iÀÄ°è ªÀiÁrgÀÄvÉÛãÉ. …………………………… £Á£ÀÄ §gÉzÀAvÀºÀ N.n.£ÉÆÃmï ªÀÄvÀÄÛ EvÀgÀ qÁPÀÖ¸ïð gÉPÁqïð ºÁ¼ÉUÉ 0iÀiÁªÀÅzÉà ¹Ãj0iÀÄ¯ï £ÀA§æ EgÀĪÀÅ¢®è JAzÀgÉ ¸Àj.  …………………… gÉÆÃV0iÀÄ£ÀÄß ©qÀÄUÀqÉ ªÀiÁqÀĪÁUÀ DvÀ£À r¸ïZÁeïð ¸ÀªÀÄäj0iÀÄ°è CAzÀgÉ F PÉøï£À°è ¦0iÀiÁðzÀÄzÁgÀgÀ zÉúÀzÀ M¼ÀUÀqÉ EgÀĪÀ ¸ÀfðPÀ¯ï E£ï¸ÀÄÖçªÉÄAmï£À PÀmï DzÀ ¨sÁUÀ G½zÀÄPÉÆArvÀÄÛ ºÁUÀÆ D «µÀ0iÀÄPÉÌ  ¸ÀA§AzsÀ¥ÀlÖAvÉ follow up treatment £À §UÉÎ ¤¢ðµÀÖªÁV £ÀªÀÄÆzÀÄ EgÀ¨ÉÃPÀÄ JAzÀgÉ ¸Àj.  …………… F ªÉÄð£À  E£ï¸ÀÄÖçªÉÄAmï vÀÄAqÁzÀ §UÉÎ D PÀA¥À¤UÉ ªÀiÁå£ÀÄ¥sÁPÀÑjAUï r¥sÉPïÖ JAzÀÄ 0iÀiÁªÀÅzÉà zÀÆgÀ£ÀÄß ¤Ãr «ZÁj¸À°®è. 

0iÀiÁªÀÅzÉà gÉÆÃV0iÀÄ£ÀÄß D¥ÀgÉõÀ£ïUÉ M¼À¥Àr¹ DvÀ¤UÉ aQvÉì ¤ÃrzÀÝ°è DvÀ £À£Àß ¥ÉõÀAmï DVgÀÄvÁÛ£É.  F jÃw ±À¸ÀÛçaQvÉì  ªÀiÁqÀĪÁUÀ DPÀ¹äPÀªÁV CxÀªÁ ¥ÀævÀåPÀëªÁV CxÀªÁ ¥ÀgÉÆÃPÀëªÁV 0iÀiÁªÀÅzÉà  ¸ÀfðPÀ¯ï E£ï¸ÀÄÖçªÉÄAmïUÀ¼ÀÄ PÀmÁÖV zÉúÀzÀ M¼À¨sÁUÀzÀ°è EzÁÝUÀ Då¸ï J qÁPÀÖgï CzÀ£ÀÄß ºÉÆgÀvÉUÉ0iÀÄ®Ä ¥Àæ0iÀÄwß¹zÁÝUÀÆå §gÀzÉà EzÁÝUÀ D ¸ÀAUÀw0iÀÄ£ÀÄß gÉÆÃVUÉ CxÀªÁ gÉÆÃV0iÀÄ ¸ÀA§A¢üPÀjUÉ w½¸À¨ÉÃPÁVgÀĪÀÅzÀÄ ªÉÊzÀågÀ PÀvÀðªÀåªÁVgÀÄvÀÛzÉ. 

0iÀiÁªÀÅzÉà ºÁ¹àl¯ïUÉ «¹nAUï qÁPÀÖgï DV ºÉÆÃzÁUÀ C°è £ÁªÀÅ D¥ÀgÉñÀ£ï ªÀiÁrzÀAvÀºÀ gÉÆÃVUÀ¼À£ÀÄß £ÉÆÃr CªÀgÀ D ¢£ÀzÀ PÀArµÀ£ï it includes medication and treatment D ºÁ¹àl¯ï£À°è ªÉÄÊ£ÉÖöÊ£ï ªÀiÁqÀĪÀAvÀºÀ PÉÃ¸ï ²Ãmï£À°è §gÉ0iÀĨÉÃPÀÄ. 

0iÀiÁªÀÅzÉà gÉÆÃV0iÀÄÄ næÃmïªÉÄAmï ¤ÃrzÀ CxÀªÁ D¥ÀgÉõÀ£ïUÉ Mû¼À¥Àr¹zÀ ªÉÊzÀågÀ ¸À®ºÉUÉ «gÉÆÃzsÀªÁV ºÁ¹àl¯ï£À C¢üPÁjUÀ¼ÀÄ ©qÀÄUÀqÉ ªÀiÁqÀĪÀAw®è.

0iÀiÁªÀÅzÉà gÉÆÃV0iÀÄ£ÀÄß  ±À¸ÀÛçaQvÉì  DzÀ £ÀAvÀgÀzÀ°è ©qÀÄUÀqÉ ªÀiÁqÀĪÁUÀ r¸ÁÑeïð ¸ÀªÀÄäj0iÀÄ° ¸À» ªÀiÁrzÀAvÀºÀ 0iÀiÁªÀÅzÉà ªÉÊzÀågÀÄUÀ¼ÀÄ, ±À¸ÀÛçaQvÉì   ªÀiÁrgÀĪÀ ªÉÊzÀågÀÄUÀ¼ÀÄ ªÀÄvÀÄÛ EvÀgÀ aQvÉì ¤ÃrzÀ ªÉÊzÀågÀÄUÀ¼À ¸À®ºÉ0iÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ ªÀÄvÀÄÛ zÁR¯ÉUÀ¼À£ÀÄß ¥Àj²Ã°¹PÉÆAqÀÄ r¸ÁÑeïð ¸ÀªÀÄäj0iÀÄ°è £ÀªÀÄÆ¢¸À¨ÉÃPÀÄ JAzÀgÉ F ªÉÄð£À J¯Áè dªÁ¨ÁÝjUÀ¼À£ÀÄß as per the Indian Medical Council Guidelines ¥ÀæPÁgÀ J¯Áè ªÉÊzÀågÀÄUÀ¼ÀÄ vÁ£ÀÄ aQvÉì PÉÆqÀĪÀAvÀºÀ gÉÆÃV0iÀÄ §UÉÎ dªÁ¨ÁÝj ªÀ»¸À¨ÉÃPÁVgÀÄvÀÛzÉ. 

CzÉà jÃw 0iÀiÁªÀÅzÉà PÁA¦èPÉñÀ£ïìUÀ¼ÀÄ EgÀ° CxÀªÁ E®èzÉà EgÀ°, MAzÀÄ ¥ÀPÀëzÀ°è PÁA¦èPÉñÀ£ïìUÀ¼ÀÄ §AzÁUÀ ªÉÊzÀågÀÄUÀ¼À£ÀÄß ¨sÉÃn ªÀiÁqÀ®Ä ¸À®ºÉ0iÀÄ£ÀÄß r¸ÁÑeïð ¸ÀªÀÄäj0iÀÄ°è ¤ÃqÀĪÀÅzÀÄ ¸ÀÆPÀÛ.

r¸ÁÑeïð ¸ÀªÀÄäj J£ÀÄߪÀ zÁR¯É0iÀÄÄ ¥Àæw0iÉƧâ gÉÆÃVUÀÆ §ºÀ¼À ªÀÄÄRåªÁzÀ zÁR¯É0iÀiÁVgÀÄvÀÛzÉ. 

Except deposing as stated supra, nothing has been proved before this FORA that the alleged broken forceps embedded in the lumber region is not due to lack of his care and diligence or the same has been informed to the Complainant or his relatives or advised any future course of action.  Nowhere in the discharge summary whispered about the above said incident.  If at all, the surgeon is so consistent in his stand, he ought to have or the hospital authorities ought to have mentioned the above story of the metal artifact or the alleged broken metal forceps left inside the lumbar region of the Complainant in discharge summary.  It is hard to believe that the Complainant was informed by the Opposite Party No.2 or hospital authority.  Because we have gone through the deposition of RW1 i.e., Opposite Party No.1  hospital.  The deposition of Opposite Party No.1 reproduced herebelow:

“£ÀªÀÄä D¸ÀàvÉæ0iÀÄ°è 0iÀiÁªÀÅzÉà gÉÆÃV ©qÀÄUÀqÉ ºÉÆAzÀĪÁUÀ DvÀ¤UÉ r¸ÁÑeïð ¸ÀªÀÄäj PÉÆqÀĪÀ PÀæªÀÄ EzÉ.  F jÃw ©qÀÄUÀqÉ ªÀiÁqÀĪÁUÀ D r¸ÁÑeïð ¸ÀªÀÄäj0iÀÄ°è ªÉÊzÀågÀÄ CªÀgÁV r¸ÁÑeïð ªÀiÁrgÀÄvÁÛgÉÆà CxÀªÁ gÉÆÃV0iÀÄ PÉÆÃjPÉ ªÉÄÃgÉUÉ r¸ÁÑeïð ªÀiÁrgÀÄvÁÛgÉÆà J£ÀÄߪÀ «µÀ0iÀĪÀ£ÀÄß £ÀªÀÄÆ¢¸ÀÄvÉÛêÉ.  CzÉà jÃw D r¸ÁÑeïð ¸ÀªÀÄäj0iÀÄ°è gÉÆÃV0iÀÄÄ ºÉaÑ£À aQvÉìUÉ §gÀ¨ÉÃPÁzÀ°è D §UÉÎ0iÀÄÆ ¸ÀºÀ CqÀé0iÀiïì PÁ®A£À°è §gÉ0iÀÄÄvÉÛêÉ.  ¸ÁQë0iÀÄÄ ¤±Á£É ¹-1 (r¸ÁÑeïð ¸ÀªÀÄäj ¢£ÁAPÀ:18.06.2007) F zÁR¯É0iÀÄÄ PÉƯÁ¸ÉÆà D¸ÀàvÉæ0iÀĪÀgÀÄ ¤ÃrzÁÝVgÀÄvÀÛzÉ JAzÀgÉ ¸Àj.  qÁ.±ÀAPÀgï (N.¦. £ÀA:3) £ÀªÀÄä ºÁ¹àl¯ï£À°è «¹nAUï qÁPÀÖgï DVgÀÄvÁÛgÉ JAzÀgÉ ¸Àj.  ¤±Á£É ¹-1£ÀÄß qÁ.±ÀAPÀgïgÀªÀgÀ ¥ÀgÀªÁV qÀÆån qÁPÀÖ¸ïð ¤ÃrzÁÝVgÀÄvÀÛzÉ.  D qÀÆån qÁPÀÖgï 0iÀiÁgÉAzÀÄ £À£ÀUÉ ºÉüÀ®Ä ¸ÁzsÀå«®è.  F r¸ÁÑeïð ¸ÀªÀÄäj ¥ÀæPÁgÀ ¦0iÀiÁðzÀÄzÁgÀ C«ð£ï PÉÆÃmÁå£ïgÀªÀjUÉ ºÉaÑ£À aQvÉìUÉ §gÀ®Ä w½¸À°®è JAzÀgÉ ¸Àj.  ¦0iÀiÁðzÀÄzÁgÀgÀÄ r¸ÁÑeïð DzÀ £ÀAvÀgÀzÀ°è ºÉÆgÀgÉÆÃV0iÀiÁV 0iÀiÁªÀÅzÉà aQvÉì0iÀÄ£ÀÄß vÉUÉzÀÄPÉÆAqÀ¢Ý®è. 

          2£Éà JzÀÄgÀÄzÁgÀ qÁ.CdÄð£ï ±ÉnÖ0iÀĪÀgÀÄ £ÀªÀÄä D¸ÀàvÉæ0iÀÄ «¹nAUï qÁPÀÖgï DVgÀÄvÁÛgÉ  CªÀgÀÄ £ÀÆågÉÆøÀdð£ï DVgÀÄvÁÛgÉ.  ……………… £ÀªÀÄä ºÁ¹àl¯ï£À°ègÀĪÀ PÉÃ¸ï ²Ãmï£À ¥ÀæPÁgÀ qÁ.±ÀAPÀgïgÀªÀgÀÄ £ÀÆågÉÆøÀdð£ïgÁzÀ qÁ.CdÄð£ï ±ÉnÖ0iÀĪÀjUÉ ¦0iÀiÁðzÀÄzÁgÀgÀ£ÀÄß gÉ¥sÀgï ªÀiÁrgÀÄvÁÛgÉ.

          qÁ.CdÄð£ï ±ÉlÖjUÉ ¸Àdðj0iÀÄ£ÀÄß £ÀªÀÄä D¸ÀàvÉæ0iÀÄ°è ªÀiÁqÀĪÁUÀ ¸À®PÀgÀuÉUÀ¼À  availability EzÁÝUÀ £ÀªÀÄä D¸ÀàvÉæ¬ÄAzÀ¯Éà ¤ÃqÀÄvÉÛêÉ.  D jÃw EgÀzÉà EzÁÝUÀ CªÀgÉà ªÀåªÀ¸ÉÜ ªÀiÁrPÉƼÀÄîvÁÛgÉ.  F PÉù£À°è £ÀªÀÄä D¸ÀàvÉæ¬ÄAzÀ ¸ÀfðPÀ¯ï E£ïµÀÄÖçªÉÄAmï£ÀÄß £ÀªÀÄä D¸ÀàvÉæ0iÀÄ°è ¤ÃrzÁÝgÉÆà CxÀªÁ CªÀgÉà vÀA¢zÁÝgÉÆà JAzÀÄ £À£ÀUÉ UÉÆwÛ®è. £ÀªÀÄä D¸ÀàvÉæ0iÀÄ°è 5 d£À qÀÆån qÁPÀÖgï EgÀÄvÁÛgÉ. ……………… £ÀªÀÄä D¸ÀàvÉæ¬ÄAzÀ ¸Àdðj ¸ÀªÀÄ0iÀÄzÀ°è  paramedical staffs which includes nurses, OT technicians etc. etc. CªÀgÀ ¸ÀºÁ0iÀĪÀ£ÀÄß ¤ÃqÀÄvÉÛêÉ.  ¦0iÀiÁðzÀÄzÁgÀjUÉ D¥ÀgÉõÀ£ï DUÀĪÀ ¸ÀªÀÄ0iÀÄzÀ°è qÁ.CdÄð£ï ±ÉnÖ0iÀĪÀjUÉ ¸ÀºÁ0iÀÄPÀgÁV 0iÀiÁªÀ £À¸ïð/¸ÁÖ¥sï EzÀÝgÀÄ JAzÀÄ £À£ÀUÉ FUÀ ºÉüÀ®Ä ¸ÁzsÀå«®è.  ¦0iÀiÁðzÀÄzÁgÀjUÉ D¥ÀgÉñÀ£ï ªÀiÁqÀĪÀ ¸ÀªÀÄ0iÀÄzÀ°è gÉÆÃV0iÀÄ zÉúÀzÀ°è ¸ÀfðPÀ¯ï E£ïµÀÄÖçªÉÄAmï  £ÉêÀiï°Ã gÉÆÃAdgï G½zÀÄPÉÆArzÉ J£ÀÄߪÀ §UÉÎ £À¸Àð¸ï gÉPÁqïð£À¯ÁèUÀ°Ã CxÀªÁ r¸ÁÑeïð ¸ÀªÀÄäj0iÀįÁèUÀ°Ã £ÀªÀÄÆzÀÄ EgÀĪÀÅ¢®è.  £À¸Àð¸ï gÉPÁqïð£À°è gÉÆÃVUÉ ¤ÃrzÀ J¯Áè vÀgÀºÀzÀ aQvÉìUÀ¼ÀÄ ªÀÄvÀÄÛ ¤ÃqÀĪÀ OµÀ¢üUÀ¼ÀÄ ªÀÄvÀÄÛ EvÁå¢UÀ¼ÀÄ PÀæªÀħzÀÞªÁV £ÀªÀÄÆzÀ£É EgÀÄvÀÛzÉ JAzÀgÉ ¸Àj.  ¦0iÀiÁðzÀÄzÁgÀjUÉ D¥ÀgÉñÀ£ï ªÀiÁr DvÀ£À zÉúÀzÀ°è gÉÆÃAdgï ¦Ã¸ï  (ªÉÄmÁ°Pï ¦Ã¸ï) EvÀÄÛ J£ÀÄߪÀ §UÉÎ qÁ.CdÄð£ï ±ÉnÖ0iÀĪÀgÀÄ £ÀªÀÄä D¸ÀàvÉæUÉ °TvÀªÁV 0iÀiÁªÀÅzÉà zÁR¯ÉUÀ¼À£ÀÄß ¤ÃqÀ°®è JAzÀgÉ ¸Àj.  £ÀªÀÄä ºÁ¹àl¯ï¤AzÀ ¦0iÀiÁðzÀÄzÁgÀ C«ð£ï PÉÆÃmÁå£ïgÀªÀjUÉ DvÀ£À zÉúÀzÉƼÀUÉ gÉÆÃAdgï ¦Ã¸ï EvÀÄÛ J£ÀÄߪÀ §UÉÎ °TvÀªÁV 0iÀiÁªÀÅzÉà zÁR¯É0iÀÄ£ÀÄß ¤ÃqÀ°®è JAzÀgÉ ¸Àj. 

          £ÀªÀÄä ºÁ¹àl¯ï£À°è M¼ÀgÉÆÃV0iÀiÁVgÀĪÀ 0iÀiÁªÀÅzÉà gÉÆÃVUÀ¼ÀÄ r¸ÁÑeïð ¸ÀªÀÄäj ªÀÄvÀÄÛ PÉÃ¸ï ²Ãmï£À PÁ¦ ¨ÉÃPÀÄ JAzÁUÀ £ÁªÀÅ ¤ÃqÀÄvÉÛêÉ.  F PÉùUÉ ¸ÀA§AzsÀ¥ÀlÖAvÉ ¦0iÀiÁðzÀÄzÁgÀgÀ vÀAzÉ £ÀªÀÄä ºÁ¹àl¯ïUÉ r¸ÁÑeïð ¸ÀªÀÄäj ªÀÄvÀÄÛ PÉÃ¸ï ²Ãmï£À PÁ¦ ¤ÃqÀ¨ÉÃPÀÄ JAzÀÄ §gÀªÀtÂUÉ0iÀÄ°è PÉýPÉÆArzÀÝgÀÄ JAzÀgÉ ¸Àj.  £ÀªÀÄä D¸ÀàvÉæ¬ÄAzÀ ¦0iÀiÁðzÀÄzÁgÀgÀ vÀAzÉ PÉýPÉÆAqÀAvÉ zÁR¯ÉUÀ¼À£ÀÄß ¤ÃqÀ°®è JAzÀgÉ ¸Àj.  CªÀjUÉ £Á£ÀÄ »A§gÀºÀªÀ£ÀÄß ¤ÃrgÀÄvÉÛãÉ.  D »A§gÀºÀ £À£Àß ªÀ±ÀzÀ°ègÀÄvÀÛzÉ.  CzÀ£ÀÄß £Áå0iÀiÁ®0iÀÄPÉÌ ºÁdj¸À®Ä vÉÆAzÀgɬĮè.  …………… D jÃw PÉÆqÀzÉà EzÀÝzÀÝjAzÀ ¦0iÀiÁðzÀÄzÁgÀgÉà ¸ÀévÀ: E£ï¥sÁªÉÄðñÀ£ï DPïÖ£Àr0iÀÄ°è Cfð0iÀÄ£ÀÄß ºÁQ PÉýPÉÆArgÀÄvÁÛgÉ JAzÀgÉ ¸Àj.  ¦0iÀiÁðzÀÄzÁgÀgÀÄ 02.01.2008gÀAzÀÄ Dgï.n.L. DPïÖ£Àr0iÀÄ°è Cfð0iÀÄ£ÀÄß ¤ÃrgÀÄvÁÛgÉ JAzÀgÉ ¸Àj.  ¦0iÀiÁðzÀÄzÁgÀjUÉ vÀzÀ£ÀAvÀgÀzÀ°è 0iÀiÁªÁUÀ zÁR¯ÉUÀ¼À£ÀÄß ¤ÃrzÉ J£ÀÄߪÀ §UÉÎ PÉÃ¸ï ²Ãmï£À°è £ÀªÀÄÆzÀÄ EgÀĪÀÅ¢®è.  ºÁ¹àl¯ï£À zÁR¯ÉUÀ¼À°è £ÀªÀÄÆzÀÄ EgÀ§ºÀÄzÀÄ.  F ªÉÄð£À Cfð ¤ÃrzÀ ¸ÀĪÀiÁgÀÄ MAzÀÄ ªÁgÀ £ÀAvÀgÀzÀ°è zÁR¯ÉUÀ¼À£ÀÄß ¤ÃrgÀÄvÉÛêÉ. 

          £ÀªÀÄä ºÁ¹àl¯ï£À PÉÃ¸ï ²Ãmï£À ¥ÀæPÁgÀ ¦0iÀiÁðzÀÄzÁgÀ C«ð£ï PÉÆÃmÁå£ïUÉ 14.06.2007gÀ 6.00 J.JA.UÉ D¥ÀgÉñÀ£ï ªÀiÁrgÀÄvÁÛgÉ.  F ªÉÄð£À «µÀ0iÀĪÀ£ÀÄß CzÉà ¢£À 2.30 ªÀÄzsÁåºÀß £ÀªÀÄÆzÀÄ ªÀiÁqÀ¯ÁVzÉ.  14.06.2007gÀAzÀÄ JµÀÄÖ UÀAmɬÄAzÀ JµÀÄÖ UÀAmÉ0iÀĪÀgÉUÉ D¥ÀgÉñÀ£ï ªÀiÁrzÀgÀÄ J£ÀÄߪÀ §UÉÎ £ÀªÀÄÆzÀÄ E®è JAzÀgÉ ¸Àj. 

CªÀgÀ£ÀÄß 9.00 J.JA. UÉ ¥ÉÇøïÖ D¥ÀgÉÃnªï y0iÉÄÃlgïUÉ vÀAzÀ §UÉÎ £ÀªÀÄÆzÀÄ EgÀÄvÀÛzÉ. ¥ÉÇøïÖ D¥ÀgÉÃnªï y0iÉÄÃlgï¤AzÀ d£ÀgÀ¯ï ªÁqïðUÉ 10.00 J.JA.UÉ ²¥sïÖ ªÀiÁrzÀ §UÉÎ £ÀªÀÄÆzÀÄ EzÉ.  10.00 UÀAmÉUÉ d£ÀgÀ¯ï ªÁqïðUÉ ²¥ïÖ ªÀiÁrzÀ £ÀAvÀgÀzÀ°è CzÉà ¢£À ªÀÄzsÁåºÀß 4.30PÉÌ N.nUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀ §UÉÎ £ÀªÀÄÆzÀÄ EzÉ JAzÀgÉ ¸Àj.  4.30 J.JA.UÉ MAzÀÄ ¨Ál¯ï §èqï£ÀÄß 0iÀÄÄ.JA.¹.¬ÄAzÀ gÉr EqÀ¨ÉÃPÀÄ JAzÀÄ £ÀªÀÄÆ¢¹zÉ JAzÀgÉ ¸Àj.  £ÀªÀÄä PÉÃ¸ï ²Ãmï£À ¥ÀæPÁgÀ 10.15 J.JA.UÉ gÉÆÃV0iÀÄ£ÀÄß ªÁqïðUÉ vÀAzÀ §UÉÎ PÁtÄvÀÛzÉ.  F ªÉÄð£À £ÀªÀÄÆzÀ£ÉUÀ¼À£ÀÄß £ÀªÀÄä £ÀªÀÄä PÉÃ¸ï ²Ãmï£À°è qÀÆån ¸ÁÖ¥sï £À¸ïð §gÉ¢gÀÄvÁÛgÉ.  

 The above part of the oral evidence of the hospital made very clear that, the Opposite Party No.2 not made written notes to the hospital authority. That means, if at all Opposite Party No.2 surgeon made OT note definitely there should have been mentioning in the discharge summary.  Because the discharge summary is issued by the hospital not by Opposite Party No.2 in this case.  Since there was no mentioning in the case sheet with regard to the above misdeeds, the hospital not disclosed in discharge summary on 18.6.2007. The above evidence of the hospital clearly shows that, the surgeon had prepared the operation notes after the discharge of the Complainant on 18.6.2007 and not before.

Apart from the oral evidence of the Opposite Party No.1 hospital, we have scrutinized the case sheet summoned by the Complainant before this FORA shows that, on 14.06.2007 at 6.00 a.m. the Complainant was taken to Operation Theatre for operation, at 9.00 a.m. he was brought to the post operative room and at 10.00 a.m. he was shifted to the ward.  The very same case sheet further discloses that, the said doctor has once again shifted the patient to the operation theatre at 4.30 p.m. and asked the hospital for arrange one bottle blood from U.M.C. Hospital and kept ready. The evidence of the hospital and the case sheet maintained in the hospital as well as the evidence of the Opposite Party No.2 i.e., the surgeon is contradictory.

 We have further noticed that, Opposite Party No.2 who is a surgeon admitted that, he has conducted the L5 S1 Disc Excision operation on the Complainant on 14.06.2007.  He has also admitted that, during the course of conducting the operation a surgical instrument was broken but there is no explanation by the surgeon how the instrument was broken, is it due to poor quality, it is admitted that no complaint has been lodged to the manufacturer in this case. That means, no explanation forthcoming.  We further noticed that, nothing has been placed on record to establish that the metal artifact left inside the lumbar region of the body of the Complainant is ‘a broken fragment of the forceps’.  Mere giving oral evidence is not sufficient to hold that the metal artifact left in the body of the Complainant is an alleged broken fragment of the forceps because the Opposite Party No.2 sworn to the fact that, during course of the surgery the tip of the forceps broke and firmly got embedded in between disc space of the Complainant.  But the Ex C5 i.e., CT scan report indicates that ‘a metallic body measuring 1.4cm x 0.6cm x 0.5cm (length x breadth x height) is seen in the left posterolateral aspect of the L5-S1 intervertebral disc space, likely representing surgical material used in prior intervention.  Over all, some surgical instrument is seen inside the body of the Complainant is safely accepted in this case. 

Further, it is true that, in a surgical procedure, the surgeon is assisted by other doctors and para-medical staff nurses etc who also owe a duty to count the metal piece or surgical instrument used during the surgical procedure to ensure that all the surgical instrument was used had been retrieved before the operated organ was sutured.  However, the surgeon cannot abjure of his or her overall responsibility even on that behalf and cannot be allowed to take the plea that it was not his/her concern to ensure that a metal piece was left in the lumbar region. If really such a check and count of operation instruments have been subsequently conducted by Opposite Party No.1 hospital with reference to the staff who have assisted him in the operation, this could have been done only with reference to operation notes or some records which they ought to have maintained at the time of operation.  Though the Opposite Party No.2 took a contention that, the surgical instrument used in the surgery belongs to him but the count and check of the operation instruments have been maintained by the para-medical staffs of the concerned hospital.  But, strangely Opposite Party No.1 or Opposite Party No.2 not produced any such records/notes maintained by the para- medical staffs with regard to counts of surgical instruments used at the time of operation.  This attitude on the part of the 1^st and 2^nd Opposite Party would also show that the surgeon as well as hospital has not bestowed any care and caution.  Opposite Party No.2 had not lodged any complaint to the manufacturer of the alleged forceps, even this attitude of the surgeon also shows that he has not bestowed any care and caution in finding out the real cause.  If he had made sincere efforts, he could have easily found the mistake he has committed at the time of operation and would have made the correctional operation instead of taking inconsistent, false pleas and misleading the FORA. 

Further, we have noticed that, why the elementary precaution of taking X-ray or CT scan was not done after the surgery or at least at the time of discharge to know whether the alleged broken forceps left behind is in proper position or atleast for future reference in case of complication. The Opposite Party No.2 deposed that, the surgical instrument was cut and the remaining piece of the surgical instrument is in his custody but till this date the Opposite Party No.2 not produced the remaining piece of the broken forceps before this FORA.  All these matters throw light on the false statement made by the surgeon in this case.

In the instant case, the one thing is sure that, some surgical instrument is left inside the operation region of the Complainant’s body is proved in CT scan report dated 11.11.2008.  Whether it is a broken forceps or unbroken surgical instrument, it will come to know only after the correction operation made and not now.  If at all, the Opposite Party No.2 is so consistent in his stand that the surgical instrument was broken during the course of the surgery, it is the duty of the surgeon to prove the same.  Except taking inconsistent pleas nothing has been placed on record to satisfy the FORA that, the metal piece visible in the lumbar region is a broken fragment of the forceps.  There is no piece of evidence either by way of X-ray or CT scan report soon after the above surgery or before discharge of the Complainant is placed on record.  One can make out that, leaving a metal piece that also in a lumbar region which is vital part of the human body is not a joke.  The metal piece may lead to infection and septicemia/ultimately lead to his death despite the best possible treatment the patient may be given in other upgraded hospitals.  

However, we would like to discuss the legal position with regard to the duties and obligations of a medical practitioner towards his patients.

           In Halsbury’s Laws of England, Volume 26, at page 17, the law is stated as under:

“Negligence: duties owed to patient.  A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.  Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment.  A breach of any these duties will support an action for negligence by the patient”.

“Degree of skill and care required.  The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care.  Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what the law requires a person is not liable in negligence because someone else of better skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art although a body of adverse opinion also existed, among medical men”.

Further, in a Landmark decision reported in 2010 CTJ Volume 18 NCDRC 294 held that,

“The preservation of human life is of paramount importance.  That is so on account of the fact that once a life is lost the statusquo-ante cannot be restored.  Therefore, an injured citizen brought for medical treatment should be instantaneously given medical aid to preserve life”. 

Similarly, in the instant case, the surgeon owes a duty to the patient herein the Complainant to use diligence, care, knowledge, skill and caution in administering the treatment.  The law requires a fair and reasonable standard of care and competence.  But in the instant case, the negligence is writ large. Unfortunately some surgical instrument has been allowed to remain in the site of the operation is proved.  Because if at all the surgeon has bestowed any care and attention, the surgical material was not allowed to be inside at the site of the operation. 

The version/defence of the Opposite Party No.2 and the evidence are totally misconceived and misleading hence cannot be acceptable.  It is apparent that, Opposite Party No.2 did not deny about leaving the metal piece inside the lumbar region of the Complainant during the operation and thus, the negligence in leaving the metal piece is admitted, consequently the Complainant faced all the above problems can be safely accepted.  On consideration of the respective pleas and the wavering stand taken by the Opposite Party No.2 at different stage, we must conclude that Opposite Party No.2 has not denied the factum of metal piece having been left inside the lumbar region of the Complainant at the time the surgical procedure conducted on the patient for L5 SI disc Excision Operation.  Even otherwise, there is ample material in the form of radiologist report and the subsequent treatment/CT scan report of the patient/Complainant underwent to show that a metal piece was left inside the lumbar region of the Complainant at the time of surgery conducted by Opposite Party No.2. 

The discharge summary as well as the Radiologist report dated 08.11.2008 and CT scan report dated 11.11.2008 mentioned supra clearly indicates that, the act and conduct of the surgeon i.e., Opposite Party No.2 and Opposite Party No.1 acted without even a iota of any reasonable degree of care and diligence which was a least that the Complainant would have expected from them.  By having acted carelessly in a manner which is not expected of a medical practitioner and accordingly he has made himself liable to face the action in torts.  Once it has been amply proved on record that, the condition of the patient had been caused due to the negligence on the part of the Opposite Party No.2 in leaving a metal piece or surgical instrument inside the lumbar region of the Complainant during the operation, the negligence is thus writ large in this case and it can be safely concluded that owing to the negligence of the Opposite Party No.2 he along with Opposite Party No.1 i.e., hospital have made themselves liable to face action under the Consumer Protection Act, 1986. 

 In the instant case, the Complainant came to Opposite Party No.2 with a hope that his doctor will cure the disease but he never expected that the doctor will leave the metal piece in his lumbar region while conducting the surgery. In this case, nobody denies the qualification or experience of the 2^nd Opposite Party as Neuro Surgeon but unfortunately CW1 has been the victim when he had the operation in the hands of the 2^nd Opposite Party and this was only due to negligence and lack of care and caution on the part of the 2^nd Opposite Party and the 1^st Opposite Party who assisted with para-medical staffs. 

In the instant case, the hospital authority categorically admitted that, they have provided para-medical staffs and other facilities to the Opposite Party No.2 i.e., the surgeon to conduct the above surgery.  When that being the case, the surgeon is assisted by other doctors and para-medical staff nurses who also owe a duty to count metal piece or surgical instrument used during the surgical procedure to ensure that all the surgical instrument was used had been retrieved before the operated organ has sutured.  But in the instant case, the case record maintained by the hospital do not whisper about the surgical instrument used during the surgical procedure or the used surgical instrument had been retrieved before the operated organ has been sutured as stated supra.  It is the duty of the para-medical staffs to assist the surgeon by supplying a sterilized surgical instrument and also it is the duty of the para-medical staffs to check the surgical instrument after the procedure and make a note of the same.  But the hospital failed to discharge the same amounts to gross negligence.

The fact that there was a surgical instrument left behind in the lumbar region of the Complainant and wound was closed without removing the surgical instrument is proved by the evidence of the CW1 which is also corroborated by CW2 - Dr.Sohali Ullal who has done the subsequent X-ray after the surgery and CW3 – Dr.Praveen Achar who has issued the endorsement with regard to the MRI.  The CW4 – Dr.Suresh Manker, who has seen the CT scan report and expressed his opinion is acceptable in this case. Therefore, the evidence of CW1 to CW4 and the connected records i.e., Ex C1 to C15 and other materials proved beyond doubt that during the first operation underwent by the Complainant in Colaco Hospital at Mangalore on 14.06.2007, a metal instrument has been left and this has caused suffering, pain and discomfort to the Complainant.  Naturally, the Complainant has suffered lot of pain and suffering along with discomfort and quit the job from abroad.   

As far as liability is concerned, the Complainant entered the hospital of the 1^st Opposite Party for the purpose of having the operation and it was the 1^st Opposite Party who offered service for which the Complainant has paid necessary fees and charges. No doubt, when a patient has consented for undergoing an operation, it does not envisage 100% success or full remedy.  All that is expected of from a skilled surgeon is possible diagnosis and correctional remedial measures which he is supposed to do with sufficient care and caution and in case of carelessness and negligence the patient will be entitled to claim damages in a case of this nature.  The 2^nd Opposite Party, who is a Neuro surgeon correctly identified the illness of the Complainant and properly suggested the remedial operation, L5 S-1 Disc Excision.  So, the diagnosis was correct and the operation conducted by the 2^nd Opposite Party was necessary under the circumstances.  And now the hospital and the doctor are being sought to be held liable only because of the negligence with which operation was done which is proved by the evidence of CW1 to CW4.  The 1^st Opposite Party is running the hospitals and it was he who has offering medical services.  The terms under which the 1^st Opposite Party allowed the doctors and surgeons is between them but because of this it cannot be stated that 1^st Opposite Party cannot be held liable so far as 3^rd party patients are concerned.  The patients like CW1 go and get themselves admitted in the 1^st Opposite Party hospital relying upon the hospital to provide them the medical service for which they pay necessary fee.  It is expected from the 1^st Opposite Party who run the hospital, to provide such a medical service and in case where there is deficiency of service or in cases of like this, where the operation has been done negligently without bestowing normal care and caution, both Opposite Parties i.e., 1^st Opposite Party and the Neuro Surgeon i.e., 2^nd Opposite Party must be held liable and the 1^st Opposite Party cannot be allowed to escape from the liability by stating that there is no relationship between the hospital and the surgeon who did the operation.

In the instant case, the Complainant is a NRI, the documents Ex C6 i.e., original salary certificate issued to the Complainant by People Network Marketing Management having worked at Abudhabi Commercial Bank produced by the Complainant reveals that, he employed in Abudhabi Commercial Bank as a Relationship Officer from 13.01.2008 till 1.09.2008 and was receiving a salary of 5500 Dirham every month.  Because of the above said incident he left the job and came back to India and now permanently incapacitated to work and dependent on the parents.  As we have already discussed herein above, the 2^nd Opposite Party doctor who performed the surgery on the Complainant is guilty of gross negligence as a result of which the Complainant has been put to suffering, hardship and loss.  Since the Opposite Party No.1 and 2 have been found liable for the loss caused to the Complainant, we have to quantify the damages to which the Complainant is lawfully entitled.  The Complainant has claimed Rs.1,00,000/- towards the medical expenses, Rs.5,00,000/- claimed as pain and sufferings, Rs.5,00,000/- for loss of income and employment, Rs.4,00,000/- claimed for further medical treatment and operation and another Rs.5,00,000/- claimed as future prospect of life and disability, in total Rs.20,00,000/- as damages for the pain, suffering, mental agony which he underwent as a result of the negligent manner in which operation was conducted upon him. 

The Complainant admittedly underwent the first operation at the 1^st Opposite Party hospital and the operation was done by the 2^nd Opposite Party and he was discharged from the hospital on 18.06.2007.  After the first surgery, he was left to foreign country i.e., Abudhabi for his employment.  Since he was suffering from pain and discomfort in his lumbar region, which was immediately conveyed to the 2^nd Opposite Party.  As the surgeon advised the Complainant that it will subside after sometimes, with the hope that the pain will subside the Complainant continued his employment in Abudhabi till September 2008.  Thereafter also the pain and discomfort continued and perhaps hoping for the pain to subside as advised by the 2^nd Opposite Party, he has been waiting for few months during which period also he continued to suffer the same pain and agony he lost his job and returned to India.  The above facts sworn by the Complainant is acceptable as true that the Complainant would not have been in a position to carry on his normal activities during this period as the metal is left inside the lumbar region and we do accept that the Complainant not capable of doing any work.  Any prudent person can judge that keeping a metal object inside the lumbar region cannot work or capable of doing any work.  For all these sufferings, pain and mental agony undergone by the Complainant due to the negligence of the 2^nd Opposite Party, the Complainant is entitled to damages.  By way of special damages, he has claimed expenses incurring for 2^nd operation to remove the metal object in any reputed hospital, definitely he requires a larger amount which we cannot assess in figure.  By considering all the above aspects, we do consider that the Complainant lost his employment in foreign country and also he requires another correction operation for removal of the surgical instrument left inside the body by the surgeon in any upgraded or reputed hospitals.  The pain and mental agony suffered which cannot be compensated by way of money.  But by considering the age, loss of employment, future prospectus of life, mental agony, pain and the expenses for correctional operation which he requires, we are thus, quantified the damages to which the Complainant is entitled due to the negligence of the 2^nd Opposite Party and 1^st Opposite Party for which we order and direct both the Opposite Parties to pay the damages.

The liability of the Opposite Party No.1 and 2 fixed as follows:

1. Opposite Party No.1 i.e., Colaco Hospital shall pay Rs.5,00,000/- to the Complainant along with interest at the rate of 9% p.a. from the date of complaint till the date of payment.
2. Opposite Party No.2 i.e, Neuro Surgeon shall pay Rs.15,00,000/- to the Complainant along with interest at 9% p.a. from the date of complaint till the date of payment.

 Further Opposite Party No.1 and 2 are jointly order and directed to pay Rs.2,000/- as cost of the litigation expenses.  Payment shall be made within 30 days from date of this order. 

It could be seen on record that, 2^nd Opposite Party, during the pendency of the complaint, impleaded his Insurance Company i.e., United India Insurance Company Limited and brought on record as Opposite Party No.6.  Inspite of service of notice to the Insurance Company, it remained as exparte.  Since Opposite Party No.2 insured with Opposite Party No.6 and whatever the liabilities of Opposite Party No.2/insured shall be indemnified by the Opposite Party No.6/insurer if the policy i.e., Ex R2 is in force in all respect. 

As far as Opposite Party No.3, 4 and 5 are concerned, there is no allegation and also there is no lapse/deficiency while treating the patient in this case.  Hence, the complaint against Opposite Party No.3, 4 and 5 is hereby dismissed.

6.       In the result, we pass the following:                                  

ORDER

            The complaint is partly allowed.  The Opposite Party No.1 i.e., Colaco hospital represented by its Medical Director is hereby directed to pay Rs.5,00,000/- (Rupees five lakhs only) to the Complainant along with interest at the rate of 9% p.a. from the date of complaint till the date of payment. 

Opposite Party No.2 i.e., Neuro Surgeon is hereby directed to pay Rs.15,00,000/- (Rupees fifteen lakhs only) to the Complainant along with interest at the rate of 9% p.a. from the date of complaint till the date of payment, the same shall be indemnified from Opposite Party No.6 i.e., United India Insurance Company Limited if the policy is in force in all respects.

Further, Opposite Parties No.1 and 2 are hereby directed to pay litigation expenses of Rs.2,000/- (Rupees two thousand only) to the Complainant.  Payment shall be made within 30 days from the date of this order.

The complaint is dismissed against Opposite Party No.3, 4 and 5. 

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 48 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 29^th day of October 2010.)

         PRESIDENT

         MEMBER                                                            MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Sri.Arvine Kotian – Complainant.

CW2 – Dr.Sohali Ullal – Radiologist at K.M.C. Hospital Mangalore – summoned witness of the Complainant.

CW3 – Dr.Praveen Achar – Radiologist at Institute of Magnetic Resonance Imaging Limited Mangalore – summoned witness of the Complainant.

CW4 – Dr.Suresh Mankar – Professor of Surgery at Yenepoya Hospital Mangalore – summoned witness of the Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 10.06.2007: Original Discharge Summary issued at Opposite Party No.1.

Ex C2 – 08.06.2007: Original MRI Scan report taken on the body of the Complainant.

Ex C3 – 31.10.2008: Original letter issued by Opposite Party No.2 to the Complainant.

Ex C4 – 08.11.2008: Original X-ray report issued by the Radiologist, KMC Hospital, Mangalore.

Ex C5 – 11.11.2008: Original CT scan of Lumbar Spine taken on the body of the Complainant at Narayana Hrudayalaya.

Ex C6 – 30.11.2008: Original salary certificate issued to the Complainant by People Network Marketing Management for having worked at Abudabhi Commercial Bank.

Ex C7 -                  : Copy of the medical and hospital bills amounting to Rs.8,953.34 (8 in numbers).

Ex C8 – 24.12.2008: Original letter addressed to the Opposite Party No.1 along with the endorsement.

Ex C9 – 02.01.2009: Original letter addressed to the Opposite Party No.1.

Ex C10 – 07.01.2009: Postal acknowledgement.

Ex C11 -            : Certified copy of the case sheet issued by the Opposite Party No.1 (it contains 29 pages).

Ex C12 – 07.01.2009: The original cash receipt for having obtained the certified copy of the case sheet.

Ex C13 – 12.06.2007: Original laboratory report (2 in numbers).

Ex C14 -                 : X-rays (3 in numbers).

Ex C15 – 30.03.2009: Original medical certificate issued by Dr.Suresh Manker Associate Professor of Surgery, Yenepoya Medical College Mangalore (it contains 2 pages).

Witnesses examined on behalf of the Opposite Parties:

RW1 – Dr.Krishna M. Gokhale, Administrator at Opposite Party No.1 hospital.

RW2 – Dr.Arjun Shetty – Opposite Party No.2.

RW3 – Dr.N.Shanker – Opposite Party No.3.

RW4 – Dr.Ajith Kumar Shetty – Orthopaedic Surgeon at Tejaswini Hospital – witness of the Opposite Party No.2.

RW5 – Dr.Avanish Bhandary – Anaesthetist – Opposite Party No.5.

RW6 – Dr.Vikram Shetty – Consultant Craniofacial Surgeon at Nitte Meenakshi Institute of Craniofacial surgery, Deralakatte – witness of the Opposite Party No.2.

RW7 – Dr.Muralidhar Pai – Professor of Neurosurgery at KMC Hospital – witness of the Opposite Party No.2.

Documents produced on behalf of the Opposite Parties:  

Ex R1 –               : Copy of the Policy bearing No.604301/46/08/

                               8700000195.

Ex R2 -               : Professional Indemnity Dr. (Other) Policy bearing No.070300/46/08/35/00000137 issued by United India Insurance Company Limited - produced by Opposite Party No.2.

Ex R3 & 3(a)  – 18.02.2009: Certificate issued by Dr.M.Ajith Kumar (RW4) to Dr.Arjun Shetty along with his signature.

Photos of the Complainant produced by Opposite Party No.2 (2 in numbers).

Summoned documents: Documents summoned by the Complainant pertaining to the Complainant produced by the Opposite Party No.1 i.e., Colaco Hospital, Mangalore (it contains 21 sheets).

Dated:29.10.2010                            PRESIDENT