By Sri. MOHANDASAN.K, PRESIDENT
Case of the complainant is as follows: -
1. The case of the complainant is that his son Muhasin Abdulla aged 11 years met with an accident on 24/01/2019 at about 5 pm at Karuvarakundu. At the time of accident his son was riding his bicycle and while he reached at the place of accident a four wheeler autokrishaw hit against the bicycle. Immediately he was taken to Almas hospital Karuvarakundu and after primary treatment he was taken to opposite party hospital at Perinthalmanna.
2. On investigation it was found that his son sustained fracture to left femur and rapture to spleen. He also sustained other injuries. During the night on 24/01/2019 itself the patient was undergone surgery and thereby spleen was removed. Thereafter surgery was done to manage fracture to femur. The complainant submitted that the opposite party demanded Rs.70, 000/- towards the treatment expenses and then the complainant said to the opposite party that he is unable to raise the huge amount and requested to refer the patient to any other hospital. But at the same time the opposite party said to the complainant that the patient is in a critical condition and it is not advisable to shift the patient to any other hospital. It is also stated that the amount of rupees 70,000/- is only for the operation fee and anesthesia charge. Thereafter one week the patient was discharged from the hospital on 30/01/2019 and at that time he remitted an amount of Rs. 1, 21,000/- to the opposite party. The complainant submitted that he spent a total amount of 1, 50,000/- in the hospital.
3. The complainant submitted that after surgery, Doctor Noorudheen, who did surgery said to complainant that the injured being a minor boy the fracture will be set right immediately and so there is no need of internal fixation hence external fixation is applied. The complainant then asked about the chance of delay in case of external fixation instead of internal fixation. But the Doctor affirmed his stand as correct.
4. Thereafter the complainant has taken the injured boy several times to the opposite party hospital availing special conveyance. All the occasion the opposite party examined the boy through X-ray and advised medicine. During the review Dr. Mohan Kumar examined the boy. While the boy was taken on 27/03/2019, the external fixation was removed and applied immobilizer. Thereafter also he was taken to the hospital various occasions. During the visit in the month of May the complainant brought to the notice of the doctor that there is bend to the leg but the response of the doctor was very arrogant. During the month June the doctor advised to use walker. Then the complainant asked the doctor since there is bent whether it will cause more complication. Then also the response of the doctor was very arrogant. The doctor ignored the case of bend of leg. The complainant submitted that during this period he spend more than 30,000/-rupees.
5. The complainant submitted that thereafter 3 weeks in a morning when the injured boy was taken to the bath room he could not come out from the bathroom. The boy cried aloud and on watching it was found that his fracture site was again fractured. The complainant took boy to the hospital and on examination confirmed that there is fracture. Then the doctor said to him that the injured by has to undergo again the surgery and internal fixation is inevitable. The opposite party demanded Rs.70, 000/- for the same. The complainant submitted that he is not prepared to pay the amount since all the complications caused due to the negligence on the part of the opposite party. At last the complainant requested to refer the patient to medical college hospital Calicut and accordingly the injured was taken to the medial college hospital Calicut. The complainant submitted that the doctors of medical college hospital said to him that the injured should not have advised for walking as did by the opposite party. It is also stated that the injury can be managed within two months and the internal fixation was the right process in the matter. Thereafter the injured was undergone treatment from the medical college hospital Calicut and later he was transferred to Nilambur taluk hospital and he underwent treatment of 5 days as inpatient in the Nilambur taluk hospital. Thereafter several times the injured was taken for review and now the patient is about to walk.
6. The complainant submitted that due to the act of the opposite party the son of the complainant and the complainant sustained a lot of inconvenience and hardship. It is submitted that the complainant suffered huge financial loss due to the negligent act of the opposite party. Hence the complainant pray for compensation of Rs. 10, 00,000/- from the opposite party.
7. On admission of the complaint notice was issued to the opposite parties and on receipt of notice the opposite parties entered appearance and filed version.
8. The first opposite party filed version and denied the entire averments and allegations in the complaint. It is submitted the complaint are ill framed, ill-advised and
filed solely for the undue financial advantage of the complainant.
9. The first opposite party submitted that the complainant’s son namely Muhasin Abdulla was brought to the causality in the second opposite party hospital on 24/01/2019 with injuries following an alleged road traffic accident. The patient was in hemorrhagic shock and immediate medical measures and supportive care was given to stabilize the patient from shock and admitted under general surgery. On the basis of clinical examination and preliminary investigation he was diagnosed to have splenic injury, haemoperitoneum, compound fracture shaft of femur left and closed fracture first Meta tarsal left. The condition and diagnosis and need for emergency surgical management were well explained to the complainant and other by standers and they voluntarily agreed and gave written informed consent for surgical arrangement of splenic injury with haemoperitoneum and fracture management with external fixation which was in accordance with standard and internationally accepted treatment protocol. After haemo dynamic stabilization, the patient was shifted to Operation Theater and emergency laparotomy and splenectomy was done. After laparotomy the patient was taken up for wound debridement and it was noticed that there was contamination and the same was also informed the complainant. The complainant was explained about the pros and cones of wound debridement and need for further surgery. Later on and written informed consent was obtained prior to the procedure under all care and aseptic sterile precautions wound debridement and external fixation of fracture femur was done.
10. The opposite party submitted that as per internationally accepted and recommended treatment protocol primary treatment in compound fracture of shaft of femur is external fixation and debridement in cases of contamination to remove foreign materials as well as damaged issues. Internal fixation of fracture and other procedures may be necessitated later and decided only on the basis of further condition if fracture union is not satisfactory as the situation is life threatening in polytrauma cases. The modality of treatment followed in the case of the patient was strictly in accordance with accepted protocol. The post-operative hospital stay was uneventful and patient was managed with proper antibiotics, analgesics and supportive care and discharged in a stable condition. The complainants statement that he demanded reference letter and he was put to fear about loss of life of the child and there by forced to continue treatment in the hospital is highly ill motivated and hence denied . The patient was brought to the hospital in a condition of hemodynamic shock following a high velocity accident with multiple injuries including splenic injury, hemoperitoneum and compound fracture shaft of femur and he required immediate surgical intervention and his condition was well explained to the complainant and other by standers. The patient was managed with emergent laparotomy and splenectomy in the given situation with reasonable care and caution and external fixation of fracture was also done as per accepted treatment protocol. The doctors attached to surgery department and the first opposite party had exercised reasonable skill and care in the treatment of the patient. It is submitted from the pleading of the complaint that the complainant was worried about the hospital bill and for the nature of injuries caused to the patient and treatment procedures undertaken hospital bill cannot be counted as unreasonable.
11. During follow-up visits the progress of union was radiologically evaluated and given proper instruction with medication. The patient reported with signs of pin track infection and fracture was showing poor response to healing which is possible in compound fracture. On examination there was mild pin tract infection and external fixator was removed and he was advised to continue anti biotic for healing of pin tract with immobilization. The complainant was informed that internal fixation would be done after healing of pin tracks and regaining knee range of movements as fracture was sticky. The patient was ambulated touch down weight bearing with brace.
12. The opposite party denied the case of complainant that there was bending of bone and the same was evident on walking etc. The patient was evaluated on follow-up re view with X ray and he was given proper medical advice as per protocol. While waiting for pin tract to heal before doing internal fixation, the patient was brought to the second opposite party hospital with history of fall and fracture was angulated and displaced well evident on X-ray examination. The patient was advised surgical correction but the complainant was not willing for surgical management of angulation caused due to fall. Hence as per request the patient was discharged for continuing treatment at medical college hospital probability the said decision could due to financial constraints.
13. The opposite party submitted that the modality of treatment of the patient for compound fracture shaft of femur in the second opposite party hospital was perfectly in accordance with the recommended and accepted guidelines of treatment. An internal fixation in a compound fracture or in a poly trauma victim with blunt injury abdomen and visceral injury with hemodynamic instability would have been catastrophic and no reasonable medical practitioner would resort such management in any circumstances. The complainant’s contention that doctors at medical college hospital allegedly opined that primary internal fixation was the option for the nature of fracture and if the same was done the patient could have been ambulated early is falsely cooked up for undue advantage and hence denied. Hence it is submitted hat no reasonable orthopedic surgeon would have ever made any such adverse commence with reference to treatment in the second opposite party hospital after proper evaluation of the case history of the patient which shows open compound fracture with contamination in the light of life threatening visceral injury.
14. The opposite party submitted that the further treatment of the patient after reference to medical college hospital are not pertaining to the knowledge of the first opposite party and so denied. It is submitted that the condition of the fracture after external fixation was neither serious nor complicated which is evident from periodical x rays and pin tract infection is well reported in compound fracture with contamination and the same was settled with antibiotics. It is submitted that internal fixation may be necessitated later in certain cases depending on the nature of fracture and the same was planned after healing pin tracts. The patient had a fall and the displacement caused due to fall further resulted in angulation and for which corrective surgery was indicated. The admitted fact that the patient is completely cured and able to walk is indicative of the fact that the line of treatment adopted by the first opposite party was scientific and proper. The fact that the patient recovered from life threatening poly trauma itself is the proof of high standard of care and medical attention given to the patients in the second opposite party hospital. It is submitted the complainant is filed on the basis of inferences and assumptions of the complainant from a laymen’s point of view.
15. The opposite party denied the contention that and the complainant suffered mental agony and financial loss, which is baseless, pretended and feigned for his undue financial gain. In the treatment of the patient the first opposite party had acted in accordance with a practice acceptable to medical profession with reasonable care and caution. It is submitted that there was absolutely no negligence, short coming or deficiency in service on the part of the first opposite party at any point of time in the treatment of the patient. The claim for compensation on account of financial loss, mental agony and cost of litigation etc. are baseless, highly exorbitant, exaggerated and without any substance, merit or rationale behind it and so denied. Hence the prayer of the opposite party is to dismiss the complaint with cost to the opposite party.
16. The second opposite party filed version in tune with the first opposite party. The
opposite party submitted that the complainant has not undergone any treatment before the opposite party hospital. The allegation of the complainant is that his son is treated and so the complaint ought to have been filed in representative [U1] capacity.
17. As per the hospital records the complainant’s son Muhasin Abdulla was brought to the causality of the hospital on 24/01/2019 with injuries following an alleged road accident. The patient was in hemorrhagic shock and immediate medical measures and supportive care was given to stabilize the patient from shock and admitted under general surgery. The patient was undergone different modalities of treatment due to the gravity of the injuries sustained. The opposite party Dr. Noorudheen has filed a separate version explaining the treatment administered to the patient Muhasin Abdulla from the second Opposite party hospital. The first opposite party stated that they are adopting the version of the first opposite party.
18. The second opposite party hospital is one of the pioneer hospitals in Malappuram. All the necessary modern infrastructure facilities are therein the hospital. Complainant’s son was given the best treatment from the hospital. There is no deficiency in service on the part of the opposite parties in treating the patient. The patient was treated from the hospitals with due diligent, care, caution and circumspection.
19. The opposite party denied the averment that the complainant suffered mental agony and financial loss. The claim of the complainant is baseless and unfounded. The opposite parties are not liable to pay any compensation as claimed by the complainant. The complaint is filed on experimental basis for extracting money from the opposite parties without any cause. The complaint is to be considered as frivolous and vexatious one and therefore the opposite parties are entitled compensatory cost from the complainant and the complaint is liable to be dismissed.
20. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A8. The documents on the side of opposite party marked as Ext. B1and B2. Ext. A1 is series of medical bills 34 in number. Ext. A2 is photocopy of discharge card dated 17/01/2021. Ext. A3 is copy of accident register cum wound certificate dated 30/01/2019. Ext. A4 is copy of reference letter issued from KIMS Al shifa hospital dated 29/06/2019. Ext. A5 is copy of prescriptions issued from government medical college, Kozhikode. Ext. A6 is X-ray film. Ext. A7 is copy of disability certificate issued from Government general hospital Manjeri. Ext. A8 is copy of FIR No. 22/2019 Karuvarakundu police station dated 27/01/2019. Ext. B1 is treatment record from the KIMS Alshifa hospital Perinthalmanna. Ext. B2 is award copy of motor accident claims tribunal Manjeri in OP (MV) No.546/2019.
21. The complainant was examined as PW 1 and the Dr. Akshay kumar was examined as PW2.
22. Heard complainant and opposite parties, perused affidavit and documents. The following points arise for consideration:-
- Whether there is deficiency in service on the part of the opposite parties?
- Whether there r is medical negligence on the part of the opposite parties?
- Relief and cost?
23. Points 1 to 3
The case of the complainant is that his son was taken to the second opposite party hospital due to accidental injuries and he was treated in the second opposite party hospital for several days. The son of the complainant was sustained fracture to left femur, splenic injury and other various minor injuries. The allegation of the complainant is that the treatment provided to the complainant was external fixation for the femur fracture but the proper treatment was internal fixation. The complainant alleged that due to the external fixation there was bending of bone and it was evident on walking. Moreover during the treatment period on a particular day when the son was in the bath room it could find that he could not stand up from the bath room and the same was due to the fracture again on the same spot of injury. When the complainant took the patient to the opposite party, the opposite party demanded huge amount for the treatment for which the complainant was not liable. Hence the complainant sought referral letter from the opposite party hospital and thus the son of the complainant was taken to medical college hospital Calicut and after the treatment undergone therein the patient could recover from the injuries. The complainant submitted that the doctors who examined and treated the patient from medical college hospital told to the complainant that the proper treatment was internal fixation and not the external fixation as done by the opposite parties. Hence the complainant alleges deficiency in service on the part of the opposite parties.
24. The complainant produced Ext. A1 to A8 to prove the case of complainant.
It can be seen that the documents produced by the complainant reveals the treatment history and the expenses met by the complainant. Ext. A7 is copy of disability certificate issued from the government general hospital Manjeri shows that the injured has got a total disability of 20%. Ext. A8 is the copy of the FIR which reveals the accident occurred which resulted injuries to the patient. But the question remains what is negligence on the side of opposite parties.
25. The opposite party filed version specifically contenting that the patient was brought to the hospital on 24/01/2019 in a hemorrhagic shock and immediate medical measures and supportive care was given to stabiles the patient from shock and admitted under general surgery. The clinical examination and investigations revealed that the injured sustained splenic injury, haemoperitoneum, compound fracture shaft of femur left and closed fracture first metatarsal left. Ext. A2 and B1 treatment record reveals the same. The condition and diagnosis required emergency surgical management and the same was well explained to the complainant and also the by standers and they voluntarily agreed and gave written informed consent for surgical management of splenic injury, haemoperitoneum and fracture management with external fixation which was in accordance with standard internationally accepted treatment. It is submitted all the procedures was undergone utmost care and aseptic sterile precautions wound debridement and external fixation of fracture femur was done. It is specifically contended that the procedure followed was internationally accepted and recommended treatment protocol in the matter of compound fracture of shaft of femur and which is external fixation and debridement in cases of contamination to remove foreign materials as well as damaged tissues. It is submitted that internal fixation of fracture and other procedures may be necessitated later and decided only on the basis of further condition if fracture union is not satisfactory as the situation is life threatening in holy trauma cases.
26. In this complaint allegation of the complainant is that the opposite party instead of managing the femur fracture through internal fixation external fixation was followed. Due to the act of the opposite party there was delay in healing the fracture and ultimately resulted fracture again. The doctors treated the patient from the medical college hospital told him that the procedure followed by the opposite parties were not correct and the same resulted the complication to the complainant.
27. In this complaint the complainant examined PW 1 and PW 2 the doctor Akshay kumar, medical college hospital, Calicut. The deposition of the complainant do not reveal specific allegation of medical negligence against the opposite parties. PW2 the doctor deposed before the Commission which also do not reveal a case of medical negligence against the opposite parties.
28. The case of medical negligence cast certain specific responsibility on the complainant. The position was recently discussed by the Hon’ble High Court of Kerala recently which holds that there are three essential ingredients in determining an act of medical negligence that is a duty of care extended to the complainant, breach of the duty to care and resulting damage, injury or harm caused to the injured as a result of breach of duty. In this complaint the complainant have no case that he is not competent to follow the procedure in the matter. There is no allegation that any procedural irregularity on the side of opposite party. The soul allegation is the procedure followed by the opposite party is external fixation instead of internal fixation. But there is no evidence the external fixation was not the proper procedure to be followed in a case of like injured in the matter. There is no expert evidence to support the case of complainant. There is no dispute with respect to the other averments in the complaint. The opposite party did not dispute the medical expenses and the disability as per Ext. A7. It is also relevant to not that the complainant approached the motor accident claim tribunal as per Ext. B2 and there by the complainant recovered the medical expenses met by the complainant as part of the treatment.
29. In the absence of satisfactory evidence to hold that there was medical negligence and deficiency in service on the part of opposite parties the Commission cannot up hold the contentions of the complainant. The complainant failed to establish medical negligence and deficiency in service on the part of the opposite parties. Mere allegations will not constitute a case of medical negligence. It is worth full to not that the complainant is a palliative worker who indulged extending medical attendance to the needy people. While the complainant was engaged in such activity it was quite unfortunate that his minor son met with a motor accident and there by sustained serious injuries. The complainant was not sound enough to meet the high cost of medical treatment which resulted the complainant to get a referral letter from the opposite party hospital to the medical college hospital. There is no doubt the condition of the complainant was pathetic at the time of the unfortunate incident. But that alone is not sufficient to attribute a case of medical negligence against the first opposite party and also against the second opposite party. The treatment record Ext. B1 series reveals the treatment undergone by the patient before the opposite parties. Hence we find there is no negligence or deficiency in service on the part of the opposite parties and so this commission dismiss this complaint.
Dated this 30th day of April, 2024.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant: PW1 & PW2
PW1: Unneenkutty.K, (Complainant)
PW2: Dr. Akshay kumar (Medical college hospital, Calicut)
Documents marked on the side of the complainant: Ext.A1 to A8
Ext.A1: (series) Medical bills 34 in number.
Ext.A2: Photocopy of discharge card dated 17/01/2021.
Ext A3: Copy of accident register cum wound certificate dated 30/01/2019.
Ext A4: Copy of reference letter issued from KIMS Al shifa hospital dated 29/06/2019.
Ext A5: Copy of prescriptions issued from government medical college, Kozhikode.
Ext.A6: x ray film.
Ext.A7: Copy of disability certificate issued from Government general hospital Manjeri.
Ext.A8: Copy of FIR No. 22/2019 Karuvarakund police station dated 27/01/2019.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 and B2
Ext.B1: Treatment record from the KIMS Alshifa hospital Perinthalmanna.
Ext.B2: Award copy of motor accident claim tribunal Manjeri in OP (MV) No.546/2019.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
