By Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows: -
1. The complainant had back pain and chest pain and so she was taken to the Malabar hospital Manjeri. She was admitted there on 30/12/2012 and discharged on 03/01/2013. Thereafter she was admitted second opposite party hospital on 05/01/2013 and a surgery was done on 11/01/2013 and discharged on 30/01/2013. The complainant had not recovered from the ailment and so the first opposite party suggested one more surgery and she undergone second surgery during December 2013. Thereafter complainant had paraplegia and she was permanently tied up on the bed and totally immobilized. Subsequently she was taken to Ganga Hospital Coimbatore for further management. From Ganga hospital Coimbatore she was told that she had to remain either in the bed or in the wheel chair in future. The doctors examined her told that all the consequences are result of the untimely surgical procedures of the opposite parties and the mistakes happened during the surgical procedure. The complainant needs a permanent by stander and also person to take her to various places if she needs to move. Her entire life stands spoiled. The complainant alleges untimely, incorrect treatment and incorrect diagnosis from the side of opposite party resulted the pathetic situation of the complainant. The complainant also alleged deficiency in service on the part of opposite parties. Hence the prayer of the complainant is to pay compensation of Rs.20,00,000/- including cost as well as interest for the amount of compensation.
2. On admission of the complaint notice issued to the opposite parties and they entered appearance and filed version in detail.
3. The first opposite party submitted that the complaint Is not maintainable either under law or on facts. The complaint is frivolous, vexatious and devoid of truth or bona fides. There was no negligence or deficiency in service on the part of the opposite party and the complainant is not entitled to get any relief as prayed for in the complaint.
4. The opposite party submitted that the complainant underwent treatment in the second opposite party hospital during 2013. The allegation of complainant is that she became paralyzed and bed ridden following surgery done in the hospital in the month of December 2013 and the present complaint appears as filed in the year 2018, which is beyond the period of limitation and hopelessly barred by limitation and so complaint is not maintainable as per law.
5. The first opposite party submitted that the treatment records pertaining to the complainant is not available in the hospital and the version filed without perusing the treatment records and so, considering the same as provisional, right to file additional version or counter affidavit on the basis of evidence is to be provided to the opposite party. According to first opposite party as per regulation 1.3.1 of the Indian Medical Council (Professional Conduct, Etiquette and ethics) regulations 2002, the hospital is bound to keep treatment records only for a period of three years from the date of commencement of treatments. The complainant was treated in the second opposite party hospital by a team of doctors from departments of Orthopedics, Neurosurgery, Radio diagnosis, Anesthesia and physiotherapy and the first opposite party is one among the team in the department of orthopedics.
6. The opposite party submitted that the complainant was brought to the second opposite party hospital in a bed ridden stage as referred case from Malabar hospital private Limited, Manjeri. As per clinical history she had sudden onset of chest and back pain with difficulty in breathing and lower limb weakness diagnosed as a case of asymmetrical paraplegia and compressive myelopathy. On examination she was having, rapidly progressing motor weakness with sensory involvement in bilateral lower limbs, with bowel and bladder involvement (retention of urine constipation), severe intractable upper back pain and breathing difficulty. The investigations brought by the patient were reviewed and X-ray showed multiple thoracic spine fractures with anterior wedging and osteoporosis. MRI showed old fracture vertebrae with fresh anterior wedging, osteoporosis, and cord ischemia and myelomalacia changes. The complainant revealed past history of fall / poly trauma at her age of 12 years and again at 21 years resulting in spine injury and multiple compression fractures at thoracic level. The complainant was thoroughly evaluated in consultation with neurosurgery, aeromedicine, radiology, pulmonology and cardiology departments and treated for the diagnosed multiple post traumatic problems caused by cord ischemia and myelomalacia. The diagnosed condition of the complainant and rapidly progressive deterioration of neurology due to fresh anterior wedging of old thoracic vertebrae fractures (osteoporosis) and risk and complication involved in the surgical management were discussed with the complainant and her bystanders in details. The pros and cons of thoracic spine surgery, chances of recovery, intention to arrest the progression of disease condition and poor prognosis were known to the complainant and conversant with the risk and prognosis they voluntarily agreed and signed high risk consent. The opposite party submitted that thoracic spine surgery for surgical decompression and stabilization was conducted by team of doctors under general anesthesia on 11/01/2013 following 6 days thorough evaluation. Post operatively the complainant had transient neurological deficit and complainant was investigated and treated with medicines and supportive care as per protocol. Diabetic detected as per blood investigation was also treated. The complainant was started on physiotherapy and was mobilized in Knight Taylor’s brace and by stander taught home physiotherapy and advised follow up strictly and discharged on 30/01/2013. Urinary catheter was removed and strong analgesics tapered and treatment for osteoporosis initiated. The complainant was also advised to review after 4 weeks or in earlier in case of need. The complainant was reported for review on 19/03/2013 and prior to that complainant had consultation with another orthopedic surgeon at Manjeri and consultation with spine surgeon Dr. Vinod attached to Baby Memorial Hospital Calicut. The submission of the opposite party is that probably the complainant condition might have worsened due to untoward incidence like trauma/fall / mobilization without brace in disregard to the modality of physiotherapy taught to done. It is also submitted that MRI with correlated CT scan showed pedicle screw cut through (left) D5 vertebrae and it is close proximity to aorta.
7. The complainant came back to the second opposite party hospital and got admitted for in house monitored physiotherapy twice daily and continued up to 27/06/2013. The complainant was kept under in house closely monitored care since any further untoward incident could result in aortal injury with high mortality. The complainant continued treatment with regular physiotherapy and treatment for osteoporosis. Once the quality of bone of the complainant improved and implants were very stable and she was discharged after check X-ray evaluation. At the time of discharge which is about 5 months after initial surgery and the complainant was able to sit without support and sensory motor level progressively in recovering state. The urinary catheter was put for better nursing care. The complainant and bystanders were advised about the precautions taken and alerted about the implant removal in future once the vertebrae regain strength and bone graft is taken up in view of pedicle screw cut through at D5 level and close proximity to aorta and pressure pain / tenderness at screw hearts under soft tissue by laying on her back. The complainant was also advised to continue neuro rehabilitation at any center. In December 2013 complainant reported compliant of pain / tenderness over screw head at back was beyond tolerable limit and hence she was evaluated on the basis of check X-ray and MRI which showed no gross spinal code compression and consolidation of bone graft and hence implant removal was done and, removed implants were handed over to the by standers. Check X ray evaluation was done once wound and screw hole defects in bone healed six weeks following implant removal and reassessed condition then the complainant was advised further neuro physiotherapy in any higher spinal cord injury rehabilitation center and issued treatment certificate accordingly. The complainant preferred Ganga Medical Centre hospital and continued rehabilitation treatment at there. When the complainant was last seen in the second opposite party hospital complainant maintained neurological status and lost further follow up. The complainant did not make any complaint with regard to the modality of treatment in the second opposite party hospital and come up with a complaint after 4 years stating distorted facts and bogus allegations only on experimental basis to grab money from the opposite party. The opposite party had attempted and treated the complainant with due diligence and care, being one among the team of doctors from various specialties. The submission of the opposite party is that there was absolutely no negligence or deficiency in service on the part of the opposite party as alleged in the complaint and so the opposite party is not liable to compensate the complainant.
8. The opposite party submitted that the averment in the complaint that the complainant paralyzed consequent to a surgery done carelessly and untimely by the first opposite party is ill motivated and so denied. The complaint is filed suppressing the material facts, cooked up allegations solely for undue financial gain and is ill framed. The opposite party contended that the complainant had referred to higher center from Malabar hospital Pvt Limited on 03/01/2013 but was brought to the second opposite party hospital only on 05/01/2013, the complainant had enough time to take a second opinion regarding treatment. The opposite party denied that the complainant was made believe that the disease and problems connected to vertebrae would be completely cured with surgery is unfounded and submitted that no medical practitioner can assure the outcome of surgery of the nature done for the complainant and surgery was intended at least to arrest the progression of disease condition. The opposite party denied the allegation that the condition of the complainant was aggravated after reaching home is baseless and hence denied. The opposite party denied that the neurological status of the complainant was same as that of her pre implant removal and the statement that she completely paralyzed forever following implant removal is baseless and the complainant was cheating by the opposite party by ensuring hope of cure of the condition of the complainant is baseless.
9. The opposite party also contended that the allegation of the complainant that the complainant and her relatives came to know from the investigations done at Ganga hospital that there were severe faults in the surgery done at the second opposite party hospital is not correct. The submission of the opposite party is that the treatment by way of rehabilitation was in the year 2014 and the complainant did not make any complaint against opposite party or against second opposite party for the last 4 years since she had paraplegia from 2012 onwards. The averment that the local medical practitioners also made the complainant aware of surgical faults with evidence is highly ill motivated and so denied. The opposite party also denied the allegation that the complainant has been subject to physical and mental agonies and sufferings put her in a vegetative state in between life and death consequent to an unscientific and avoidable surgery done in a careless manner. The submission of the opposite party is that from the document and from investigations, clinical history findings recorded by treating doctors of various centers that the complainant was having paraplegia with rapidly progressing weakness of bilateral lower limbs due to resultant effect of previous trauma, spinal cord ischemia and myelomalacia changes. The opposite party submitted that he treated the complainant as one among the team of specialist and there was no fault or failure on his part and the modality of treatment was in strict regard to standard and accepted medical practice and protocol. The opposite part submitted that he is having qualification of MBBS, D ortho, DNB (ortho) 9 years’ experience as a teacher (Associate professor and senior consultant orthopedic surgeon). Hence the prayer of the opposite party is to dismiss the complaint with cost of Rs.10,000/- as envisaged as under section 26 of Consumer Protection Act for filing a frivolous and vexatious complaint against him.
10. The second opposite party filed version reiterating what is stated by the first opposite party in the version. In addition to that the opposite party contended that the original treatment records pertaining to the complainant were burned off in a fire broke out in the hospital on 19/10/2016. The opposite party submitted that the above fact was known to the complainant and it was intimated to the complainant in response to her application for copy of records. As per regulation 1.3.1 of Indian Medical Council (Professional conduct etiquette and ethics) regulations 2002 the hospital is bound to keep treatment records only for a period of 3 years from the date of commencement of treatment. It is also submitted that the first opposite party is working as a paid employee of the second opposite party hospital and the complainant was treated by a team of well qualified and experienced doctors and other medical staff attached to the department of orthopedics, neuro surgery, Anesthesia and physiotherapy. The second opposite party submitted that there is no cause of action against the second opposite party as stated in the complaint and the second opposite party is a well renowned specialty hospital at Perinthalmanna providing efficacious service of well qualified and experienced medical staff and advanced treatment facilities, so the prayer of the opposite party is to dismiss the complaint with cost to the second opposite party.
11. The complainant and apposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext.A1 to A17. No document is produced by the opposites party. Ext. A1 is Discharge summary dated 03/01/2013. Ext. A2 is Reference card issued from MES Medical college hospital, Perinthalmanna dated 30/01/2013. Ext. A3 is copy of USG abdomen dated 08/01/2013. Ext. A4 is copy of USG abdomen dated 13/01/2013. Ext. A5 MRI of dorsal spine with screening of all spine. Ext. A6 is copy of MRI dorsal spine plain dated 14/03/2013. Ext. A7 is reference card dated MES Medical college hospital, perinthalmnna dated 27/06/2013. Ext. A8 is copy of USG abdomen dated 23/05/2013. Ext. A9 is certificate issued by doctor C. P. Ummar koya dated 20/08/2013. Ext. A10 is scan report US abdomen, Ganga Medical Centre and hospital Pvt. Ltd. Dated 25/02/2014. Ext. A11 is report from Urology Clinic, Coimbatore dated 03/03/2014. Ext. A12 is discharge summary issued from Ganga Medical Centre and hospital Pvt. ltd. Coimbatore dated 05/04/2014. Ext. A13 is discharge card Rajagiri Hospital, Edavanna (No date). Ext.14 discharge card from Rajagiri Hospital, Edavanna dated 27/04/2017. Ext. A15 is copy of application form under RTI act, dated 05/12/17. Ext. A16 series of postal receipts. Ext. A17 is disability certificate issued by District Medical Board, General hospital, Manjeri, dated 08/01/2018.
12. Complainant examined as PW1 and Dr. Rajish.K examined as PW2. The first opposite party Dr. Rajanish R examined as DW1. Heard complainant and opposite parties, perused affidavit and documents. Both sides filed argument note also.
The following points arises for consideration:
- Whether the complaint is barred by limitation?
- Whether there is any deficiency in service on the part of opposite parties?
- Relief and cost?
13. Point No.1
The opposite parties contended that the complaint is barred by limitation since the cause of action arose during the year 2014 and thereafter 4 years elapsed. As per the Consumer Protection Act, complaint is to be filed within two years from the date of cause of action. The relevant provision 24 A strictly state that-
- The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
- Not with standing anything contained in sub-section (1), a complaint may be entertained after the period specified in subsection (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be records its reasons for condoning such delay.
14. In this complaint the complainant/Patient was admitted and treated in the second opposite party hospital during the period 5/01/2013 to 30/01/2013 and from 19/03/2013 to 27/06/2013. The complainant also stated that she was under observation of the opposite parties still 08/2013. The complainant continued her treatment at Ganga hospital Kovai and the date of discharge shown as 05/04/2014. The submission of the opposite party is that the limitation for the complaint starts from 05/04/2014, that is from the date of discharge from Ganga hospital Kovai. The complainant was silent thereafter 4 years. Hence the submission of opposite party is that the complaint is barred by limitation.
15. The complainant herein had filed this complaint without an application for condonation of delay but the commission admitted the complaint and issued notice to the parties. Later the complainant filed IA 229/2020 on 16/11/2020 to condone the delay caused in filing the complaint. The prayer in the IA is to condone the delay of two years three months and nine days in filing the complaint. The submission of the complaint is that she was under regular treatment of the opposite party and was taking medicine for the ailment. The opposite parties assured the complainant that she will recover from the ailment. The complainant alleges the words of the opposite party was with intention to prevent the complainant from moving for legal action. But when the doctor was consulted at Edavanna hospital, she was advised that her complications resulted due to the untimely and faulty procedures opted by the opposite party. Thereafter she approached the opposite party hospital for the treatment records but that was not delivered to her. In addition to that she was totally immobilized after the procedures underwent before the opposite party and presently she is in a vegetative condition. It is also evident from the records that the opposite party could not trace the documents kept with them due to fire occurred in the hospital. Hence non availability of the documents and totally bedridden condition of the complainant is a sufficient reason for condoning the delay in filing the complaint. Moreover, it can be seen that the development of disability of the complainant is a later experience of the complainant. Hence, we finds the cause of action herein is continuing one and so there is sufficient reason to condone the delay in filing this complaint and so we do not find merit in the contention of the opposite party regarding the limitation of the complaint.
16. Point No.2
It is really pathetic and admitted fact that the complainant is at present cent percent disabled person. Ext. A7 shows that her disability as 100%. The complainant was brought before the commission through special conveyance and examined as PW-1. The case of the complainant is that she was led to this condition due to the procedures underwent before the opposite party hospital. The allegation of the complaint is that the procedure adopted by the opposite party was untimely one and there was mistake as well as incorrect diagnosis. Hence the prayer is to allow compensation of Rs.20,00,000/-.
17. As per the records produced by the complainant, she was taken to the Malabar hospitals Manjeri with the complaint of sudden onset of chest and back pain and difficulty in breathing X 4 days. Later she developed lower limb weakness. History of polytrauma at 12 years ago and was treated conservatively then. MRI scan was taken from the hospital which reveals compression fracture dorsal spine with kyphoscoliosis. It is diagnosed as asymmetrical paraplegia and compressive myelopathy. Then as per Ext. A1 discharge summary the complainant was referred to higher centre for expert neurosurgical management. The complainant was got admitted before the second opposite party hospital on 05/01/2013 and discharged on 30/01/2013. She was undergone surgery on 11/01/2013. Ext. A2 is reference card issued from the opposite party hospital reveals the injuries and the treatment history underwent at the opposite party hospital. As per Ext. A2 it is noted that complainant was having rapidly progressing motor weakness with sensory involvement in bilateral lower limbs, with bowel and bladder involvement (retention of urine constipation), server intractable upper back pain and breathing difficulty. X-ray revealed multiple thoracic spine fractures with anterior wedging and osteoporosis. MRI showed old fracture vertebrae with fresh anterior wedging, osteoporosis, and cord ischemia and myelomalacia changes. The case history of complainant also revealed history of fall / poly trauma at her age of 12 years and again at 21 years resulting in spine injury and multiple compression fractures at thoracic level. Ext. A2 also reveals since last two months she is having B/L rapidly progressing motor weakness C sensory involvement (R) LL>(L) LL (UMN type ) bowel /bladder involved . Ext. A2 also reveal complainant developed neurological deficit post operatively and post-surgical neurological deficit gradually recovering & improving.
18. The complainant was admitted in the opposite party hospital again on 19/03/2013 and discharged on 27/06/2013. The purpose of admission was physiotherapy. The diagnosis as Ext. A7 is thoracic spine surgery (D4-D10 stabilization) paraplegia. The condition at the time of discharge it is noted as “can sit without support. recovery / motor level progressively recovering “. Ext. A12 is discharge summery issued from Ganga Medical Centre and hospitals and which reveals the fact the complainant has got back pain experience for the last 18 years. It is noted that the patient was apparently normal 18 years back when she sustained injury to back, took conservative treatment, pain subside. She was having asymptomatic for duration of 11 years, then again, she started having pain, dull aching, intermittent, gradually progressive. The complainant continued conservative treatment.
19. The documents produced by the complainant shows the history of ailment of the complainant. Complainant was initially taken to the Malabar Hospital Manjeri and thereafter she was admitted at opposite party hospital. The complainant underwent surgery from the second opposite party hospital. The allegation of the complainant is that the surgery done from the hospital was untimely one and there was no proper diagnosis and procedure from the opposite party hospital. But the documents produced by the complainant as part of evidence shows that the disease of the complainant was in a stage of rapidly progressive deterioration of neurology due to fresh anterior wedging of old thoracic vertebrae fractures. The deposition of the PW1 shows that she was gone to Malabar hospital by walking but after 5 days when she was taken to opposite party hospital, on wheel chair. The first opposite party deposed that the complainant was brought to the hospital in a bed ridden stage. Hence there is contention on the part of the opposite party that the complainant was in a rapidly progressive deterioration of neurology due to fresh anterior wedging of old thoracic vertebrae fractures and which cannot be due to any negligence or deficiency in service on the part of the opposite party hospital. The discharge summary Ext. A12 issued from the Ganga Medical Centre and hospital (P) Ltd. explained the history of ailment of the complainant, which is no doubt recorded by the hospital authorities from the revelation of the complainant side and also from the perusal of treatment history. Ext. A12 reveals that she sustained injury to back about 18 years ago and there was conservative treatment for the same. The averment in Ext. A12 establish the fact there was occasion of falling more than one time and causing injuries to the complainant which is supported by Ext. A1 also. So, the contention of the complainant due to the untimely and defective procedures adopted by the opposite party resulted the present physical situation of the complainant cannot be accepted without sufficient evidence.
20. The complainant side argued before the commission that the certificate and discharge summary issued from Ganga Hospital will show that the diagnosis is spinal cord injury status post T4-T9 posterior instrumentation for post traumatic kyphosis with paraplegia and the procedure was, spinal cord rehabilitation. On the other hand the procedure done from MES Medical college hospital is the surgical decompression + stabilization (10-15). So the procedures are different as per records. The counsel for complainant submits that the operation done by the opposite party may to relive pressure but never stop the irritation and so the treatment provided by the opposite party was failure and incorrect. The treatment certificate, that is reference card issued from MES Medical College hospital shows that treatment was for spinal cord injury but what is done is spinal cord rehabilitation. Hence the complainant alleges variation of standard of medical treatment from the opposite party. But the fact is that even after the first surgical procedures from the opposite party, the complainant had met an ortho specialist at Manjeri and also another neurologist at Baby Memorial hospital Calicut. If the treatment given by the opposite party was in a wrong way and against standard medical protocol it could have brought to the notice of the complainant immediate after the consultation of the so-called specialist doctors. It is also pertinent to note the complainant alleged all the medical negligence and improper procedure against opposite parties long after the consultation from the Ganga Medical Centre and hospital Coimbatore. The counsel for complainant submitted that though the consent for surgery was given to the opposite party, that doesn’t mean to do any procedures at the pleasure of opposite parties. But it can be seen that the complainant has given properly informed consent to the opposite party and it is the settled position that in medical profession the doctor is permitted to do the proper procedure to save the interest of patient. In this complaint there is no expert opinion regarding that the opposite party opted a wrong procedure which is against accepted medical protocol.
21. In a medical negligence case, it is the well settled position that it is the responsibility of the complainant to aver a specific allegation of negligence and also liable to prove the same through the expert evidence. In this complaint the complainant examined PW2 as an expert witness before the commission. But it can be seen that he deposed before the commission that he issued Ext. A13 document and there in it is stated that the complainant paralysed after gyno surgery as told by the son of the complainant. He also deposed that paraplegia may occur if there is fall causing injury to vertebrae. His specialisation is in respiratory medicine. He has not studied neurology or orthopaedic science. He deposed that he has not seen any document of the treatment administered to the complainant for paraplegia. Hence the submission of the opposite party is that the PW2 is not an expert witness to depose about the neurological deficits or orthopaedic science. We find that there is merit in the contention of the opposite party. The expert opinion in a medical negligence is highly required when the negligence is not apparent one. The Hon’ble Apex court has held this position in various occasions. It is reported in Jacob Mathew Vs State of Punjab (2005) 6 SCC 1 that the onus to prove medical negligence lies largely on the complainant and this onus can be discharged by leading cogent evidence. So, it is settled position that a complaint without expert evidence to substantiate the allegations are not at all sufficient to hold that there is negligence or deficiency in service on the part of the doctors. It is also held by the Apex court and National commission on various occasion that negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence.
22. The counsel for the complainant submitted that the decision regarding Jacob Mathew Vs State of Punjab is related to a criminal prosecution. According to him the guidelines placed by the decision cannot be applied to the acts of doctors if there is any medical negligence and claim for compensation. In a case wherein compensation is to be awarded, the same set of principles cannot be applied. But it is already stated above that the case of negligence in the matter of medical field finds a different position. Finding negligence against a doctor amounts capital punishment and no doubt, will affect the entire profession and so the guideline laid down by the decision has to be followed.
23. In this case, as per documents produced by the complainant herself shows that history of poly trauma at 12 years age and thereafter while she was aged 18 years, she had sustained injury to back and there was conservative treatment also. But on the occasion of cross examination of the complainant, she denied the entire past history except patella dislocation, which shows the complainant made attempt to conceal certain facts from the commission. It is the cardinal principle of law that one who seeks justice must do justice and for seeking justice if he goes to courts, he should go with true facts and clean hands. If the facts are incorrect and the hands are not clean, the complainant is not entitled to any relief.
24. The documents produced reveals that while the complainant was taken to the opposite party hospital, the complainant was in a rapidly progressing deterioration of neurology due to fresh anterior wedging of old thoracic vertebrae fractures (osteo porosis). So, the opposite party was responsible to meet the medical requirement considering the condition of the complainant. The opposite party has stated that before entering to the procedure the pros and cons were properly explained to the complainant and convinced them. It is also contended that the complainant had got enough opportunity to avail second opinion before undergoing treatment/surgery at the opposite party hospital. The surgery was done at the opposite party hospital after 5 days of her admission. Even after the discharge from the hospital the complainant had consulted with other doctors also. In this complaint the complainant could not establish error of judgement or mistaken diagnosis on the side of opposite party. It is reported in Jacob Mathew V/S State of Punjab a mere deviation from normal professional practice is not necessarily evidence of negligence. It is also to be noted that a mere accident is not evidence of negligence. So also, an error of judgement on the part of professional is not negligence per se. Higher the acutance in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of successes for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow would depend on the facts and circumstances of a given case. The usual practice prevalent now a days is to obtain the consent of the patient or of the person in charge of the patient if the patient is not be in position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chooses to follow one procedure and not another and the result was a failure.
25. In this complaint the opposite party deposed that if the patient, after surgery either has not followed the advice to do physiotherapy or done it carelessly, in such a condition the screws fixed the vertebrae may change the position and accordingly the corrected spinal cord may again suffer damages.
26. Considering the documents, nature of ailments, history of the patient, the procedure adopted before the opposite parties, we cannot hold that the surgical procedure was initiated untimely and there was negligence or deficiency on the side of opposite parties. The complainant fails to establish the medical negligence and deficiency in service on the part of the opposite parties and so we dismiss this complaint and we do not consider the third issue.
Dated this 29th day of August, 2022.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: PW1 & PW2
PW1: Aathikka (Complainant)
PW2: Dr. Rajish.K
Documents marked on the side of the complainant: Ext.A1to A17
Ext.A1: Discharge summary dated 03/01/2013.
Ext.A2: Reference card issued from MES Medical college hospital Perinthalmanna
dated 30/01/2013.
Ext A3: Copy of USG abdomen dated 08/01/2013.
Ext A4: Copy of USG abdomen dated 13/01/2013.
Ext A5: MRI of dorsal spine with screening of whole spine.
Ext.A6: Copy of MRI dorsal spine plain dated 14/03/2013.
Ext.A7: Reference card dated MES Medical college hospital Perinthalmnna
27/06/2013.
Ext A8: Copy of USG abdomen dated 23/05/2013.
Ext A9: Certificate issued by Doctor C. P. Ummar koya dated 20/08/2013.
Ext A10: Scan report US abdomen, dated Ganga Medical Centre and hospital Pvt. Ltd.
Dated 25/02/2014.
Ext.A11: Report from Urology Clinic Coimbatore dated 03/03/2014.
Ext.A12: Discharge summary issued from Ganga Medical Centre and hospital Pvt. ltd.
Coimbatore dated 05/04/2014.
Ext A13: Discharge card Rajagiri Hospital, Edavanna (No date).
Ext A14: Discharge card from Rajagiri Hospital, Edavanna dated 27/04/2017. E
Ext A15: Copy of application form under RTI act.
Ext.A16: Series of postal receipts.
Ext.A17: Disability certificate issued by District Medical Board, General hospital,
Manjeri dated 08/01/2018.
Witness examined on the side of the opposite party: DW1
DW1: Dr. Rajanish.R
Documents marked on the side of the opposite party: Nil
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
