SRI.K. VIJAYAKUMARAN, PRESIDENT. This is a complaint for realization of compensation of Rs.5 lakhs costs etc. The averments in the complainant can be briefly summarized as follows: The complainant approached the opp.parties on. 3.7.2003 with a complaint of fall and consequential fracture of left patella. She was admitted and was advised to under go a surgery for cure. On 5.7.2003 the 2nd opp.party conducted surgery and she was discharged on 15.7.2003. Even at the time of discharge the complainant was suffering from severe pain . When she told the 2nd opp.party about this he told her that it is usual and believing the 2nd opp.party she went home and rested On 1.8.2003 the complaint reported for check up before the 2nd opp.party who made window through the plaster and found that the operated region was severely infected with puz. He collected puz from the area and send it for investigation and the report showed that the portion was seriously infected. On 6.8.2003 the complainant was referred to medical college Thiruvananthapurm for better management and there she underwent a serious surgery. It was also revealed that the surgery conducted on the complainant by the opp.party was wrong and negligently conducted. The complainant has consulted Dr. M. Chariyan Thomas and he has advised that the only course left to the complainant is to replace the patella with artificial one. The suggested form of treatment could cost of Rs. 3,00,000/- The complainant is a woman of 42 years age, and working as a teacher in High School. She cannot move out from her house due to stiff leg . She cannot walk to a distance beyond 50 meters and cannot climb in a Bus or car The conjugate and family relation was totally broken due to the wanton negligence on the part of the opp.party. The complainant is 60% disable due to the wrong operation. The patella was seen fixed withwrong degree plastering. The internal binding of the broken patella was seen done against the ordinary course of medico corrections done by the Orthopedic Surgeon . Due to the infection in the region the broken patella pieces were seen unhygienic and deteriorated necessitating removal of the patella. The complainant has undergone treatment at the Medical College, Thiruvananthapuram for 30 days and discharged on 5.9.2003. The whole complication was due the negligence of the opp.party. The following are the instances of the negligence of the opp.party 1. The operation was conducted in haste without getting proper knowledge regarding the course of the broken patella. 2. The Pattella binding process was done against the admitted process of Ortho repare 3. Due to the severe infection at the operated region the muscles of the operated area is lost control for movement and became totallyh resent to getting the change of possible mgt. through physiotherapy. 4. The operation was conducted in a nonsteryle infected theater. 5. The plastering procedure was done in list even before the operation locus was filed and before the stitches were removed. It is due to the negligence of the opp.party the infection become severe if there was regular medical attention in the area the infection could have been avoided The complainant has spent more than Rs.2 lakhs for the treatment at the opp.party hospital and spent Rs. 2 lakhs for further treatments. The complainant suffered severe pain and agony due to the wanton negligence and deficiency in the service of the opp.party. Hence the complaint. The first opp.party filed a version contending as follows: This complaint is filed solely on an experimental basis. The 1st opp.party admits the factual data and treatment procedure adapted by the 2nd opp.party Doctor as stated in his version as true and correct. The 2nd opp.party who had treated the patient is a well qualified specialist Orthopaedic Surgeon having good experience. He had carried out the treatment of the patient very carefully and by adapting appropriate and correct methods. The diagnosis was also correct and proper and the line of treatment adapted by the 2nd opp.party was the medically accepted procedure for lthe conditions of the patient. The 1st opp.party hospital is a reputed and well equipped one in the region with all facilities and there are many specialist doctors in that hospital. Numerous surgeries are being done there daily. The first opp.party hospital is the only multy specialty hospital in that area having a separate operation theatre for surgery. They are very well aware of the necessity to keep the operation theatre and the hospital premises clean towards which the theatres are routinely being cleaned and fumigated for maintaining the theatres in completely clean and aseptic condition. There was absolutely no possibility for any infection to take place either from the operation theatre or from the premises of the 1st opp.party hospital. None of the patient who underwent surgery in that theatre of the 1st opp.party during that particular period had any problem of infection at all. The allegation that operation was conducted at an infected theatre is false. After the surgery diagnostic tests was carried out to detect infection and to initiate appropriate treatment and such treatment was commenced immediately. Even in the best of hospitals anywhere in the world infections after surgery has never been totally eradicated inspite of the most rigorous precautionary measures. The possibility of post operative infections is a universally accepted complication of any surgery. There was no deficiency in service on the part of the 1st opp.party or on the part of the 2nd opp.party. Hence the first opp.party prays to dismiss the complaint. The 2nd opp.party filed a separate version contending, interalia that the complaint is not maintainable either in law or on facts. The complainant has approached this Forum stating untrue facts and hence the true facts aresubmitted by this opp.party. Mrs Jameela Beevi 48 years old lady was admitted the first opp.party hospital under the 2nd opp.party on 3.7.2003. She had sustained a fracture patella with some communition and two major fragments reportedly due to fall on 3.7.2003. Surgical treatment was absolutely essential and the detail of surgery planned was communicated to the patient and her relatives on 4.7.2004 and after getting informed consent, preoperative check up was done and physician’s opinion that the candidate is fit for surgery was obtained.. The surgery was done on 5.7.2003 with all necessary precautions and under strict asepsis and with utmost care and caution. The site of injury was properly cleaned and sterilized. The surgical procedure done was tension band wiring of broken pattela bone aiming to preserve the original structure and functioning of the patella. After the surgery check X-ray was taken and it showed good alignment. After the procedure the limb was supported in padded plaster of paris slab as recommended in the textbooks During the post operative period, antibiotics were given. On 14.7.2004 when sutures were removed, minimal collection of blood stained fluid was drained which was sent for culture and sensitivity and based on the report of the culture and sensitivity[which was forcibly captured by the relatives of the patient] she was admitted on 17.7.2003 for giving the sensitive antibiotics. The patient was slowly responding to the antibiotics and physiotherapy procedure was advised and she was able to extend her knee gently from, 26.7.2003 onwards. She was discharged on 28.7.2003 and advised follow up. She came for follow up on 4.8.2004. During transportation from home she suddenly had a feeling of give way as some sudden bending movement of the knee occurred. X-ray was taken and there was found to be loosening of implants and fracture separation. This required removal of implants and surgical removal of pattela and the same was advised for the patient. The relatives requested referral to Medical Colllege, Thiruvananthapurm and the needful was done. The averments in para 2 of the complaint are not fully correct hence denied. The allegation that at the time of discharge, the complainant fwas suffering from severe pain and whenever it was reported the 2nd opp.party said it is usual to have pain in the area is false and hence denied. The averments that on 1.8.2003, when the complainant reported for check up the 2nd opp.party made window through the plaster and found that the operative region was severely infected with pus is also false and misleading and hence denied. The 2nd opp.party had noted minimal collection of blood stained fluid much earlier on 14.7.2003 when sutures were removed and had promptly drained and sent it for culture and sensitivity on 14.7.2003 as part of caution on the part of the 2nd opp.party to detect any possible infection at an early stage. At this stage pus was not present in the wound. The 2nd opp.party did not wait till 1.8.2003 to detect infection in the form of pus as alleged. Infection was reported in the culture and sensitivity test done and post operative antibiotics already given were changed to sensitive antibiotics on 17.7.2003 when the result of the culture and sensitivity test was available All measures were taken to detect infection at an early stage itself. The 2nd opp.party had taken all sterile precautions and asepsis in properly fumigated and sterile theatre to avoid infection. Further post operative antibiotics were administered to minimize chance of infection. Thus every possible and reasonable measures were taken by the 2nd opp.party to prevent infection. Inspite of all measures infection can occur due to the mutilated nature of the injury and the inherent bodily properties of wound healing and immunity of the complainant. The 2nd opp.party is not at fault for this. The allegation that at Medical College it was revealed that the operation conducted by the opp.party was wrong and negligent in the X-ray film is totally false and baseless and hence denied. A further allegations that the complainant cannot move out from house due to stiffening of leg and that she cannot walk to a distance beyond 50 meters due to the wanton negligence on the part of the 2nd opp.party is wrong and denied. . The allegations that the complainant has 60 % disabled due to the wrong surgery and treatment is also denied. The averments that internal binding of the broken patella was done against the ordinary course of medical correction done by orthopaedic surgeons are also wrong and strongly denied.. The 2nd opp.party had given the standard and appropriate treatment and the surgical procedure done was tension band wiring of broken patella bone, aiming to preserve the original structure, shape and function and it was the appropriate orthopedic treatment for the complainant’s injury at her age. An appropriate well padded POP slab before and after surgery as per the standard orthopaedic requirement. There was no defect in plastering and the allegation to the contrary is strongly denied. The allegation that the cause for the removal of pattela was due to wrong operation and plastering conducted by the opp.party is strongly denied. The instances cited by the complainant to show negligence of the opp.party are false and baseless and hence denied. The allegation that the operation was conducted in haste without getting proper knowledge regarding the course of the broken pattela is totally false and hence denied. The operation was conducted in a insterile infected theatre is strongly denied. The operation was conducted in a sterile, clean and well maintained theatre, properly fumigated on a periodic basis to ensure sterile conditions. All precautions were taken to avoid infection. Post operative antibiotics were given and culture and sensitivity tests done at the slightest suspicion and antibiotics changed according to its results. In spite of all if infection developed it cannot be attributed to any negligence or deficiency of service on the part of the 2nd opp.party. Infection can occur in the best of possible care given, due to mutilated injury occurring at the time of accident, and due to the inherent response of the complainant’s body to treatment. In the case of the complainant infection caused worsening of the situation resulting in the need for removal of the pettella and it is not due to any negligence or lapses on the part of the 2nd opp.party. The allegations regarding the plastering procedure under instance No.5 on the last part of page 2 of the complaint are poorly spelt and totally unclear and in any case the procedure was done in the appropriate manner and all connected allegations are strongly denied. The allegation in para 6 that it is due to the negligence of the opp.party, the infection became severe and if there was regular medical attention in the area the infection could have been restrained in the earliest possible time is false and hence denied. The 2nd opp.party is a well qualified land experienced orthopedic surgeon having good standing in his field of specialization. The 1st opp.party hospital is a well equipped one having modern facilities. The 2nd opp.party was a paid employee of the 1st opp.party hospital and the principle of vicarious liability of the employer is applicable in this case. The amount claimed in the complaint is highly exaggerated and claimed without any basis. There is no negligence or deficiency in service on the part of the opp.parties. The complainant is not entitled to get any amount as compensation from the 2nd opp.party. Hence the 2nd opp.party prays to dismiss the complaint with compensatory costs of Rs.10,000/- Points that would arise for consideration are: 1. Whether there is deficiency in service on the part of the opp.parties? 2. Reliefs and costs. For the complainant PW.1 is examined Ext. P1 to P7 are marked For the opp.party DW.1 and 2 were examined and Exts. D1 and D2 were marked. Points: The complainant sustained communitted fracture to her left patella, that she approached opp.party 1 hospital on 3.7.2003, on 5..7.2003 opp.party 2 conducted a surgery on her and implanted tension band wiring, that subsequently there was some infection in the operated area and thereupon the impant and pattela were removed are not disputed. The contention of the complainant is that the infection is caused due to the surgery performed in a non-sterile infected operation theatre and negligence in implanting tension band wiring by opp.party 2. The contention of the opp.parties is that there is no negligence on their part. The complainant approached the opp.parties on 3.7.2003 with the history of fall and her x-ray was taken which showed displaced fracture sustained to the left patella with two major fragments and 2nd opp.party told the complainant it can be united only through an operation for which the patient and her husband gave consent. The operation called Open Reduction and Internal Fixation was done by opp.party 2 on 5.7.2003 and Tension Band wiring with K-wire and steel wire was implanted on the fractured area. After the surgery check x-ray was taken which revealed that there was proper union at the fractured area. A slab was also applied for immobilization. Proper antibiotics were also given and she was treated in the post operative ward. On 14.7.2003 when stitches were removed there was some blood stamed liquid in the operated area and immediately sample was taken and send for culture and sensitivity test and the patient was discharged she was admitted again on 22.7.2003 with complaints of pain and on the basis of culture report the antibiotic which was being given to the patient was changed and new antibiotic Amicacin was started and infection controlled. She was discharged on 28.7.2003 after changing the injection to oral antibiotic with a direction to come for review on 4.8.2003. When she came on 4.8.2003 the patient told that on 28.7.2003 on the way back home after discharge she had a give way and sudden bending of knee occurred and on taking X-ray it was noticed that there was loosening of the implants and fracture separation. The opp.party 2 thereupon advised for removal of implants and patella but the patient and her relatives demanded for referral to Medical College Hospital, Thiruvananthapuram and that there is no negligence or deficiency in service on their part. Now the question to be considered is as to whether the opp.parties have exercised due care and caution in treating the complainant. The complainant has no case that the fracture sustained by her could have been set right without any surgery. She has not produced any material to show that there are other methods of treatment which are equal to or better than the one adopted by opp.party 2. Admittedly the injury sustained by the complainant was commuiated fracture of left patella and DW.1 has stated that open reduction and internal fixation by means of Tension Band wiring is the proper treatment in such circumstances. The expert doctor appointed by the Forum has also answered to the interrogatories to Question No.2 in Ext. X1 that in the case of displaced transverse Fracture patella with two segments the surgery to be done is Tension Band Wiring.[see also answer to counter interrogatory No.1] The expert has further stated that if plastering alone is done there will be non-union loss of full extension of knee and the patient would not be able to walk or straighten the knee[answer to question No.3]. The complainant has not adduced any expert evidence to establish that the procedure adopted by DW.1 is not the proper one. So we are of the view that the procedure adopted by DW.1 is in accordance with the standard procedure. Another contention of the complainant is that the surgery was conducted in a haste without getting proper knowledge. It is an admitted case that the complainant was brought to opp.party 1 hospital on 3.7.2003 with fracture of left knee consequent to a fall and opp.party 2 attended her. PW.1 admitted that after taking x-ray opp.party 2 told her that a surgery would be required and after discussing with her the surgery was fixed on 5.7.2003 . Necessary consent was also given for the surgery can be seen from Ext. D1 case sheet. The surgery was conducted on 5.7.2003 is not disputed. From the materials now before the Forum it can be seen that the surgery was conducted 2 days after the admission after conducting necessary tests and taking x-ray. So the contention that the surgery was conducted in haste is unsustainable. Another contention is that the surgery was conducted in a Non-sterile infected theatre. According to the learned counsel for the complainant the infection is exclusively from the “in sterile Substandard implant used for the operation and the insterile condition of the operation Theatre and the equipments used for operation” The definite contention of the complainant is that there is only one operation theatre in the opp.party 1 hospital and the surgery conducted on the complainant was the 2nd surgery conducted on the same day in the same operation theatre. According to the opp.parties there are 3 operation theatres in opp.party 1 hospital. DW.2 has stated that there are 3 operation theatres in Opp.party 1 hospital, one theatre is for minor cases, one for orthopedic surgery exclusively and the 3rd one is for non – orthopedic surgery. Other than the oral assertion the complainant has not taken any step to establish that there is only one operation theatre. DWs 1 and 2 have stated that after every surgery the operation theatre is cleaned and fumigated. According to the opp.parties the infection caused to the complainant during post operative period is not due to the non-sterile condition of the operation theatre but due to inherent risk and complications of implanting of foreign objects. The learned counsel for the opp.parties would argue that the infection caused to PW.1 is due to osteomyelitis which is an infection on the bone marrow and in support of his contention he has relied on the Text Book of “System orthopedics and Fracture” by Louis Soloman, David Warwick and Selva Durai Nayagam wherein it is stated that “Osteomyelitis can occur after any operation on bone, but especially after operating an open fracture and after procedure involving use of foreign implants. The reported incident on orthopedic operations on broad cross section of patient varies from 0.2% to over 10% It is further stated therein “whatever the ‘cause’ of the infection, and whether early or ‘late, the foreign implant is both a predis-posting factor and an important elemant in its persistence. Bacteria as well as human tissue cells have an affinity for molecules on the surface of the implant. Both complete for occupancy of the same surface – the tissue cells by adaptation and integration the bacteria by adhension and colomization. This contest has been aptly called” the race for the surface’ If the tissue cells win, the implant is incorporated as an ‘inert’ biomaterial . If the bacterial wins, the resulting infection usually persists until the implant is removed” That explains the persisting infection in the complainant ” The expert has also stated in Ext. X1 that there is chances of developing infection after orthopedic surgeries like Tension Band wiring in about 10% cases. To question No.6 of interrogatories “Even if the operation theatre is sterile and properly fumigated one there is chance of infection to the patient upon surgery. Here also no contra evidence was adduced by the complainant to prove that the infection caused to PW.1 is due to non sterile condition of the operation theatre or the implants. PW.1 has stated in cross examination that 3 other persons have also undergone surgery on 5.7.2003 in that operation theatre and that they have also developed infection and that information was furnished by a staff of opp.party 1 hospital but she would not remember his name nor she could identify him even by sight . Regarding the allegation of insterile and substandard implants also no evidence was let in. The surgery by which the implants were removed was conducted at the Medical College Hospital, Thiruvananthapuram. If there was any bonafides in that contention the complainant could have proved the same by examining that surgerory. But she did not do so. It is well settled that to prove negligence of any doctor the complainant has to lead adequate evidence with supportive medical text” 2006 [1] CPR 68 {NC}. As pointed out earlier no material is produced to establish that there is only one operation theatre in opp.party 1 hospital and that the infection caused to PW.1 is due to non sterile condition of the operation theatre and subsestandard implants used for tension band wiring Another contention is that the delay in prescribing Amicacin injunction immediately after surgery is the cause for the infection which would establish negligence on the part of the opp.parties. That argument does not appeal to us. The antibiotics have adverse effects. A prudent doctor would give an antibiotic having least side effects. A powerful antibiotic is administered only if mild antibiotic does not respond. Here Amicacin is started after getting culture and sensitivity report. Merely because a powerful antibiotic was not given a treating doctor cannot be held liable for negligence.. Another contention of the complainant is that due to severe infection the cells at the operated regime were damaged and the opportunity for a subsequent patella repair is lost. It is the further case of the complainant that due to the negligence of the opp.parties the infection became severe and had there been regular medical attention the infection could have been restrained. The contention of the opp.parties that the infection was not at all due to any negligence on their part but due to inherent nature of surgery and implants inserted in the body of the patient is corroborated by the expert opinion as well as the authorities in the subject would go to show that upto 10% of the patients undergoing surgery implants like Tension Band Wiring have chances of developing postoperative infection. Other than the oral assertions no contra evidence is produced by the complainant herein also to disprove the above contention. The learned counsel for the opp.parties would argue that there was proper medical attention during post operative period. Broad spectrum of antibiotics were being given and the patient was completely relieved of pain during the post operative period. It is further agued that on noticing blood stand fluid on removing slab and stitches the same was immediately send for culture and sensitivity test and after receipt of test report the antibiotic being given to the patient was changed and since the patient responded to the antibiotic on discharge oral antibiotics were given from which it is obvious that the infection has been controlled though not cured completely. Apex court has held “simple because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, doctor cannot be held straight away liable for medical negligence by applying the doctrine of Resipsa loquotor. No sensible professional would intentionally commit an act or omission which will result in harm or injury to a patient since the professional reputation of the doctor would be at stake. S single failure may cost him clear in his lapse. [para 4] Civil Appeal No.3541/2002 simply because the infection was not controlled immediately negligence cannot be attributed on the treating doctor It is also worth pointing out in this context that on 28.7.2003 while the complainant on discharge from opp.party 1 hospital proceeding in a wheel chair towards the car she felt acute pain but she did not mention the same to the doctor immediately but told the doctor when she came for 3rd review and on taking x-ray it was revealed that the implants were loosened and fragments separated. According to the opp.parties this has happened when PW.1 attempted to walk and not due to any negligence on their part. The expert has also stated in answer to Interrogatory No.9 viz. If a patient undergone Tension Band wiring attempts to walk against the advise of the treating doctor what will be probable complication Break down of steel wire and fracture fail to unite”. So the argument of the opp.parties that the complication arose when PW.1 attempted to walk on 28.7.2003 has considerable force . PW.1 herself has admitted this in cross examination. To use her own words gn\mlaf\ admit svu\fk discharge svu\fk iJ}jShu\]k ;iglrluj wheel chair H dlyjShu\]k sdln\mkigkr\r cauf\fk .ub\dg Sipr strain Kn\mluj. The learned counsel for opp.party would argue that such complication could have arisen only due to some jerky or other sharp movement of left knee, which is the reason for the loosening of implant Tension bank wiring and displacement of fractured fragments of the patella which ultimately resulted in the Patelloctomy and not due to any negligence of the opp.parties. We are also of the view that no negligence can be attributed against the treating doctor for this and it cannot besaid that this happened due to any defect in the surgery and implant of Tension band wiring PW.1 has also admitted in cross examination that it was due to some unexpected incident. “II opp.party Sin\mYf YCp\PSulmkA dgkfShmkA domjulnk TO cGwyj svu\fsfr\rk\ tr\rlH vjh LYefJd\,jf dlgnb\bxlH Sin\mYf EhA dj}lf\fflsnr\rk\ eyukr\rk [Q] Lsf; To another question Lnk>lPsdln\mlnk operation Theatre H Tb\bsr cA.pjv\vfk tr\rkeyukr\rfkQgk Lrkalrah\h\sh[Q] the answer is Lsf. PW.1 is an educated lady working as a teacher and by any stretch of imagination it can be said that she has answered without understanding the question. It is also pertinent to point out that no clarification regarding this aspect was put by way of reexamination. It is also pertinent to point out that the complainant has no case that there is some other method of treatment which would have been advisable. Another contention is that due to severe infection at the operated area the muscle there lost control for movement and became totally resent to getting chance of possible management through physiotherapy. According to the learned counsel for the opp.party 2 physiotherapy can be done only if infection is controlled and when infection was controlled opp.party 2 advised them to remove the implants and Patella but the patient sought for reference to Medical College Hospital, Thiruvananthapuram Ext.P7 shows that the complainant was admitted in the Medical College Hospital, Thiruvananthapuram for physiotherapy on 27.2.2004 and undergone physiotherapic treatment for 7 days which means that the complaint that PW.1 become totally resistant to getting possible management through physiotherapy is not true. PW.1 who has stated in para 6 of proof affidavit that she is unable to walk or do her daily avocations in cross examination to a pointed question that th\hl pjicikA Tijsm [consumer SdlmfjujH] emjduyjuh\sh igkr\rfk? She answered Lsf So the contention that PW.1 has total disability is also not true. The expert doctor has stated thaqt there is no durability in answer to Q.No.10 “what is the general prognosis or functional outcome after patelectomy surgery”? He has further stated that there is no need for another surgery to replace Patella with artificial one. It is well settled that in a medical negligence case the burden to establish negligence against the treating doctor is on the complainant. In this case other than the interested testimony of PW.1 no medical evidence is adduced in this regard. It is also well settled that negligence cannot be attributed to a doctor so long as he is performing his duty to the best of his ability and with due care and caution. The Apex Court has held that “A medical practitioner is not liable to be held negligent. Simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standard of a reasonably competent practitioner in his field” [Martin FD’sonsa V Mohd Ishfac Civil Appeal No.3541/2002] As pointed out earlier the complaint failed to establish that there is some treatment other than or better than the one adopted by DW.1 in her case. The expert doctor has also stated that Tension Bank wiring is the proper treatment in the case of the complaint “ A doctor or surgeon does not undertake that he will positively cure a patient nor does he undertake to use the highest possible degree of skill, as there may be persons more learned and skilled than himself, but he definitely undertakes to use a fair, reasonable and competent degree of skill” 2005 [1] CPJ 60. From the evidence now before us we find that the complainant has not succeeded in establishing that there was negligence on the side of the opp.parties. Point found accordingly. In the result the complaint fails and the same is hereby dismissed. No costs. Dated this the 12th day of June, 2009. Pw.1. – Jameela Beevi List of documents for the complainant P1. – Culture and Sensitivity report P2. – OP Ticket P3. – Bills [ 2Nos.] P4. – Doctor’s reference letter P5. – Doctor’s reference to Medical College, Thiruvananthapuram P6. – Doctor Rafeek’s letter P7. – Medical College Referal OP card List of witnesses for the opp.party DW.1. – Sethu Sivan DW.2.- Dr. Shareef Ahamed List of documents for the opp.parties D1. –Case sheet D2. – Orthopaedic surgeries during the period February 2003 to June 2004 By Dr. Sethu. | 
