By Smt. C.S. Sulekha Beevi, President,

1. Complainant sustained compound fracture of both bones of left leg and was admitted and treated in fourth opposite party hospital from 04-01-2002 till 22-01-2002. As part of treatment external fixation was done. After discharge he continued treatment as out patient on several dates. After treatment there was visible non-union of fracture. On 05-9-2002 second opposite party suggested to undergo a further surgery for Inter locking Nailing of tibia. It is stated that opposite parties tried to evade the queries of the complainant in order to hide their mistake. Thereafter complainant went to MIOT hospital, Chennai from where he was treated by interlocking intramedullar nailing of left tibia on 16-9-2002 and bone grafting was done on 23-9-2002. Complainant was fully cured after the treatment at MIOT., hospital. That complainant had to spend Rs.1,30,000/- towards hospital expenses at MIOT hospital. It is alleged that the non-union of fracture was due to negligence of opposite parties. That if opposite parties had applied proper care and treatment the second treatment at MIOT., hospital could have been avoided. Hence this complaint.

2. First, second and third opposite parties filed a combined version. Denying the allegation of medical negligence it is submitted that during the relevant period first opposite party was working as a physician, second opposite party was working as orthopedic surgeon and third opposite party was working as assistant to second opposite party in fourth opposite party hospital. On 04-01-2002 complainant was admitted with fracture of both bones of left leg with abrasions and puncture wounds on the leg. The details of medicines, injections and treatment given is stated in the version. The patient was seen by first opposite party, physician who advised for drugs for hypertension and to maintain diabetic diet. Care of the wound was continued with proper cleaning, dressing and antibiotics Blood sugar tests and necessary investigations were done. On 08-01-2002 the patient was put on insulin. The patient was posted for Inter locking nailing (hereafter mentioned as ILN) of tibia surgery on 09-01-2002. Necessary consent was obtained. On 09-01-2002 when patient was under spinal anaesthesia wound redebridement was done. It showed serous collection in the leg. Suspecting infection, a swab was taken for culture and sensitivity. It is stated that since it is not advisable to put an intermedullary, interlocking nail when there was possibility of infection, it was wisely decided to do orthofix external fixator method. The complainant and bystanders were informed about the nature of surgery undergone and the reasons for change from the initial planning. Check x-ray showed excellent reduction of tibial fracture. Medicines were continued. On 22-01-2002 he was discharged with advice to review. Complainant review on several dates and various advices were given to him. On 14-5-2002 the external fixator was removed. The fracture was found sticky in acceptable position. The condition was discussed with patient and bystander and upon agreement cast management was applied. On 05-9-2002 when plaster cast was removed there was no adequate callus for full union. The condition was discussed with patient and informed him that ILN surgery or Ilizarov fixation was needed. The patient agreed for surgery and said that he would come on 14-9-2002 for getting admitted. Thereafter he did not turn up. From the complaint it is understood that he underwent the very same surgery at MIOT hospital, Chennai. That non-union is a common outcome in the course of fracture healing. That there is no medical negligence on the part of opposite parties and that complainant is not entitled to any reliefs.

3. Fourth opposite party who is the Managing Director of the hospiial has filed a separate version. Opposite party has denied negligence on the part of opposite party doctors. Admitting the treatment of complainant in the hospital it is stated that all doctors and paramedical staff attached to opposite party hospital are well experienced and highly qualified in their respective fields. That complainant was provided with utmost care and caution in treatment. That opposite party is not aware of the treatments undergone at MIOT hospital. That there is no negligence, the claims are highly exaggerated, and raised without any basis.

4. Evidence consists of the oral evidence of complainant who was examined as PW1. Exts.A1 to A3 marked for him. Second opposite party was examined as DW1. No documents marked for opposite parties. Exts.X1, X2, X1(a) and X1(d) marked.

5. Points for consideration:-

(i) Whether there is any medical deficiency on the part of opposite parties.

(ii) If so, reliefs and costs.

6. Points (i):-

At the cost of repetition the facts in a nutshell are as under:

Complainant sustained fracture of both bones of left leg with puncture wounds and was admitted in opposite party hospital on 04-01-2002. He was given necessary treatments for controlling his blood sugar and healing of the wound. On 09-01-2002 the patient was posted to undergo surgery for Inter Locking Nailing (ILN) of tibia as treatment and management of his fracture. Informed written consent was obtained for the same. It is the case of opposite party that under anaesthesia, on seeing serous collection in the leg, second opposite party suspected infection. So he deviated from the planned procedure of surgery. Instead of doing ILN second opposite party adopted Orthofix External Fixator method. Continuous reviews and check-x-rays were done. On 14-5-2002 when external fixator was removed the result was not satisfactory. Then conservative method of plaster cast application was done. On 05-9-2002 when cast was removed the fracture had not united. Then second opposite party informed the complainant that surgery for doing ILN has to be conducted. But complainant did not approach second opposite party for any further treatment. Complainant then underwent the ILN surgery at MIOT hospital, Chennai and he was fully cured. It is alleged that the failure on the part of second opposite party to do ILN surgery in the first instance of treatment is negligence and amounts to medical deficiency.

7. Complainant has not challenged the educational qualification of the treating doctors. The allegation of medical negligence, as averred in the complaint is that opposite party failed to render the proper treatment for the fracture sustained by complainant and this resulted in non-union. That the complainant had to undergone further surgery and treatment at MIOT hospital, Chennai for which he had to incur heavy expenses.

8. At the time of hearing, the counsel for complainant was fair enough to limit the allegation of negligence to the following points:-

(i) That though second opposite party planned, prepared and obtained consent to conduct ILN Surgery, he deviated from this, and adopted external fixation method without any reason. That if the reason for deviation from planned surgery is absent/incorrect, it amounts to negligence.

(ii) That the deviation from the planned procedure was not informed to the patient.

Therefore the questions that require analysation are:- (a) whether second opposite party doctor was justified in deviating from the planned surgery? (b) Whether necessary consent was obtained?

9. It is not in dispute that complainant was posted to conduct ILN surgery on 09-01-2002. Admittedly second opposite party deviated from the planned procedure and he conducted external fixator method. It is also admitted that after this treatment there was non-union and then second opposite party advised to undergo ILN surgery.

10. Supported by specific and clear pleadings,the case put forward by second opposite party is that, though he planned for ILN surgery as the proper method to manage the fracture,he deviated from the planned procedure at the operation table, on suspecting infection on the leg. Second opposite party has affirmed that as it is not advisable to put an intermedullary, interlocking nail when there is possibility of infection, and that it was wisely decided by him to do skeletal stabilization of tibia with orthofix External Fixator which could provide good stability like internal fixation and also give compression to facilitate

union. The testimony of DW1 in this regard which has withstood the challenge of cross-examination is as under:

1. “The consent was for doing ILN tibia. The reason deviation are as follows: On 09-01-2002 I did a redebridement and found that the muscles were looking unhealthy and there was collection. Suspecting possibility of infection I decided to change the mode of stabilization of tibia from ILN to orthofix external fixator. It is correct to say that all my deeds and findings at the time of operation will find a place in the operation notes. Witness adds. Only relevant parts of the operation findings will be recorded. It is correct to say that suspicion of the possibility of an infection was the main reason to shift the procedure of operation. I have noted in Ext.X1 operation notes the possibility of infection.”

2. “Whether it was a suspicion?”(Q)

“It was a suspicion.”(A).

3. “The presence of collection, unhealthy looking muscles and fascia gave me the suspicion of infection.”

4. “I do not agree to the suggestion that it was negligence on my part to have deviated from the procedure of surgery. Witness adds. I deviated in the best interest of the patient and if I did not deviate the result would be catastrophic.”

11. In re-examination DW1 has further clarified that if ILN is done to a patient in the presence of suspected infection, the infection will spread to the whole length of the bone, and then there is high chance of non-union and infected non-union. The records also show that while under anaesthesia, and on the operation table, second opposite party entered into a finding of suspected infection. The findings recorded by him in operation notes is as under.

“|C-arm (the inspection/observation was made under C-arm machine)

On Redebridement muscles looking unhealthy with collection, communicating with # BB, 1 cm puncture wound on posterio lateral aspect of (L) leg M/3 L/3 junction. With multiple abrasions M/3 leg – anterior and posterior aspect. Infected fascia and part of muscles found.”

Thus according to second opposite party he suspected possibility of infection because, on doing redebridement on the operation table, under anaesthesia he found the muscles looking unhealthy with collection, and also finding infected fascia and part of muscles. That he deviated from the planned surgery in the best interest of the patient.

12. Counsel appearing for complainant refuted these submissions and contended that there was absolutely no reason to deviate from the planned surgery and that the contention of suspected infection is only a cooked up story. He relied on Ext.X1(b) which is the operation notes in Ext.X1 case sheet. It was submitted by the learned counsel for complainant that if the doctor suspects infection it is his duty to collect a swab and send it for investigation. It is submitted on behalf of complainant that in Ext.X1(b) there is no mention of collecting swab and that therefore the case of suspected infection is false. On perusal of the records it is correct that there is no mention of taking a swab. But second opposite party has pleaded, affirmed and deposed categorically that he had collected a swab and send it for investigation. His consistent case is supported by X1 case sheet which contains the culture and sensitivity report of the swab collected on 09-01-2002. This culture and sensitivity report establishes that second opposite party bonafidely suspected infection, collected the swab and send it for investigation. Further second opposite party has also recorded his observations/findings which led to the suspicion. In our opinion the omission to mention that swab was collected is not fatal. Moreover complainant, himself has admitted that there was serous collection in his leg and that this was the

reason for deviating from the planned surgery. PW1 has deposed as under:-

“എനിക്ക് ചികിത്സ തുടങ്ങിയതിനുശേ‍ഷം infection ഉണ്ടായിട്ടുണ്ട്. നീര് കാലില്‍ വന്നതുകൊണ്ടാണ് Madras-ല്‍ നിന്നും ചെയ്ത ചികിത്സ എതൃകക്ഷി ആശുപത്രിയില്‍ നിന്നും ചെയ്യാതിരുന്നത് എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. ചികിത്സ തുടങ്ങുന്നതിനു മുന്‍പ് രോഗമെന്താണെന്നും ചികിത്സ എന്താണെന്നും ബോദ്ധ്യപ്പെടുത്തിയിരുന്നു.”

13. Another argument put forward by the counsel for complainant was that on 09-01-2002 the blood sugar of the patient was fully under control and that this fact is a pointer to show that there was no infection at all. The presence of blood sugar and presence of infection are entirely different. There is no expert evidence before us to establish that the absence of blood sugar indicates absence of infection. In no cannon of common sense can such arguments be digested and we therefore totally disregard it.

14. From the evidence tendered and materials on record it is sufficiently established and proved that the reason for deviating from the planned surgery (ILN) was suspicion of infection. Complainant does not have a case that the external fixator method adopted by opposite party is not a method accepted by medical practice for treatment of fracture. His case is that ILN ought to have been done. It is settled position of law that when there are two different methods of treatment, a doctor is free to adopt one of them, and in doing so, the case cannot be categorized as medical negligence. In this particular case, second opposite party had actually planned and prepared for ILN method. He later decided to deviate which was a decision taken basing upon his own skill and experience. Needless to say that it was convenient for opposite party to conduct the planned procedure, because all preparations are set up. Ordinarily a surgeon does not gain anything by not doing the planned surgery. To deviate from the planned and prepared procedure is more difficult. Which method is more appropriate to follow, would depend upon the facts and circumstances of each case. A doctor, in our view, cannot be penalized if he adopts a procedure which he bonafidely believed to be best for his patient but unfortunately resulted in failure. The allegation of negligence or carelessness on the part of a doctor is a very serious charge. There should be definite proof of negligence by opinion of an expert which is absolutely absent in this case. There is no expert opinion before us to the effect that the situation presented by complainant was such that a doctor could and ought to have performed ILN surgery. It has also to be stated that complainant had diabetes which in common knowledge promotes infection. We find second opposite party was fully justified in deviating from the planned surgery.

15. The second issue raised is that proper consent was not obtained before deviating from the planned surgery. At the outset it has to be stated that this allegation regarding lack of consent is not at all supported by pleadings. Ext.X1(a) is the consent form which is part of X1 case sheet. X1(a) is signed by the complainant and witnessed by his wife and brother-in-law. It is in regional language—Malayalam. The procedure of surgery for which express consent is obtained is 'ILN tibia'. But in X1(a) it is also stated and agreed by complainant that in the event of any necessity that may arise, the doctor can adopt a different procedure without obtaining a further consent form. DW1 has deposed that he informed the patient and bystanders about the deviation in procedure. This is admitted by complainant who has stated that the doctor did not perform the planned procedure due to presence of serous collection in his leg.

16. We have no doubt to conclude that necessary express and informed consent was obtained by opposite parties for the planned surgery as well as for deviation from the planned procedure.

17. Despite best efforts the treatment of a doctor may fail. The basic principle relating to the law of medical negligence is the Bolam Rule. In Jacob Mathew vs. State of Punjab and another 2005 CTJ 1085(SC)(CP) it is held:

“A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.”

We cannot accept the contention of complainant that the doctor ought to have done ILN surgery whatever may be his observations. Doctors are often put to situations when they have to make choices. He cannot be blamed for choosing a method which in his opinion was necessary to avoid greater risk. Though may have less chance of success. It is difficult to say that if opposite party doctor had done ILN surgery in the first instance itself, the complainant would have been cured completely. The chances, that if there was infection, it would have spread to the whole bone causing serious consequences cannot be brushed aside. In the aforesaid circumstances, the facts of this case, applied to the law laid, does not reveal any medical negligence.

18. From the foregoing discussions, basing on the principles and decisions relating to medical negligence we hold that there is no negligence and medical deficiency on the part of opposite parties. Complainant has failed to establish a case in his favour. We do not find opposite parties deficient in service. The point found against the complainant.

19. In the result we dismiss the complaint. We make no order as to costs.

Dated this 22^nd day of July, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1

PW1 : V. M. Unnikrishnan, Complainant.

Documents marked on the side of the complainant : Ext.A1 to A3

Ext.A1 : Discharge Summary given by opposite party to complainant.

Ext.A2 : Discharge Summary given by MIOT Hospital to complainant.

Ext.A3series : Bills (6 Nos) from MIOT Hospital to complainant.

Witness examined on the side of the opposite parties : DW1

DW1 : Dr. K. K. Abdul Latheef, Second opposite party.

Documents marked on the side of the opposite parties : Nil

Third party documents marked : X1, X2, X1(a) to X1(d)

Ext.X1 : Inpatient records relating to complainant produced by opposite party.

Ext.X1(a) : Consent of the patient produced by opposite party.

Ext.X1(b) : Operation Notes relating to complainant produced by opposite party.

Ext.X1(c) : Diabetic Chart relating to complainant produced by opposite party.

Ext.X1(d) : Graphic T.P.R Chart relating to complainant produced by opposite party.

Ext.X2 : Admission and Discharge records of complainant produced by opposite party

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER