ORDER

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

This is a complaint filed against opposite parties alleging medical negligence.

1. Facts:-

On 30-7-2003 the complainant had an accident by falling into the closet in toilet and sustained injury to her leg. She had excruciating pain on the leg and could not press her leg on the ground. She approached second opposite party hospital and consulted first opposite party doctor. Complainant narrated the cause of injury to first opposite party doctor. After examination first opposite party doctor sutured the wound and prescribed medicines. To the enquiries made by the complainant and her relatives as to whether there was any complication, first opposite party had assured that the injury was a minor one and there was nothing to worry. The pain on the leg continued and complainant approached second opposite party hospital on the next day also. But first opposite party did not give much attention and directed the nurse to dress the wound afresh. Complainant did not get any relief from the treatment under first opposite party. The pain on the leg continued and she then approached Farook Hospital at Feroke on 18-8-2003. She was seen and treated by Dr. Venkatesh at this hospital. The doctor diagnosed that the achilles tendon of the ankle was cut. Complainant was admitted in this hospital and surgery was done to explore the cut ends of the tendon and the tendon was repaired. She was discharged on 28-8-2003. Plaster cast was applied to the leg. On 02-10-2003 she was again admitted for removing plaster and for physiotherapy treatment. Even after discharge the complainant was unable to walk. It is alleged that first opposite party doctor did not examine the wound with reasonable care and did not find out the injury to the tendon. That first opposite party ought to have conducted proper examination and investigations after coming to know that the injury had been caused by fall in closet. Due to delay, the broken tendon had shrunk and a surgery was needed to explore and find out the broken ends. That if first opposite party had examined the wound thoroughly on the first day the cut to tendon could have been found out and easily treated. It is stated that complainant had to undergo surgery, further treatment and suffer hardships due tot he lack of care on the part of first opposite party doctor in diagnosing the tendon injury. Complainant incurred Rs.16,750/- towards treatment expenses. She prays for payment of this amount along with compensation of Rs.50,000/-.

2. First and second opposite parties filed a combined version denying the allegations of medical negligence. Opposite parties admit that complainant had approached opposite party hospital on 30-7-2003 with an injury to her leg. Opposite party denies the averment that complainant had given history of fall into the closet. First opposite party had examined the wound thoroughly with reasonable care. The wound was properly cleaned with proper aseptic precautions and was sutured with three stitches. She was prescribed with antibiotics, analgesics and also injection of T.T. At the time of consultation, the complainant/patient was alright and had come to the hospital by walking and she had left the hospital also by walking. She was advised to give rest to the sutured region and also for follow up treatment. The patient came the next day and was seen by another doctor who was on duty. The wound was again cleaned, dressed and medicines were continued. She had no complications except minimal pain following the injury and had left the hospital walking. Thereafter the complainant did not turn up though she was adviced for follow up for removal of suture. That the fact that she approached Farook hospital only on 18-8-2003 ie., nearly after 3 weeks indicates that there was no such complications as averred in the complaint. If she had true difficulty in walking due to injury to the tendon she would have reported to opposite party hospital or any other hospital and would not have waited for 18 days. Dr. Venkatesh who treated the complainant subsequently has noted only partial cut in tendon achilles of the injured leg. This was caused due to the negligence and carelessness of the complainant who did not follow up with opposite parties. Lack of rest tot he affected part has aggravated the injury to partial cut of tendon. That there was no appreciable injury to achilles tendon at the time of examination by first opposite party. Due to lack of rest of the affected part the wound widened and became an appreciable injury. The cut in the tendon was not detectable on first day of examination and first opposite party cannot be blamed with negligence for missed diagnosis. If complainant had come for follow up as advised any such missing in the diagnosis could have been revised. Whatever hardship the complainant had to suffer was caused only due tot he negligence on the part of complainant herself. Opposite parties are not aware of the treatment taken in Farook hospital and hence these averments are not admitted. That first opposite party has seen the complainant only on the first day and that on the second day she was seen by another doctor as is evident from the different handwriting of the doctor’s notes. The claim put forward is exaggerated and baseless. That there is no medical deficiency on the part of opposite parties.

3. Evidence consists of the oral evidence of the complainant who was examined as PW1 and a witness examined on behalf of complainant as PW2. Exts.A1 to A10 marked for complainant. Opposite party has not filed any counter affidavit and has not adduced oral evidence. No documents marked for opposite party.

4. Points for consideration:-

(i) Whether opposite party is deficient in service.

(ii) If so, relies and costs.

5. Point (i):-

The sum of the allegations of medical negligence levelled against opposite parties is that first opposite party doctor did not apply reasonable care in conducting examination of the wound and thereby failed to diagnose the cut to achilles tendon in the leg injury. It is her case that as she had narrated that the injury had resulted by fall in closet, and because she exhibited excruciating pain with inability to walk opposite party ought to have looked for complications and diagnosed the cut to the tendon.

6. Refuting these allegations it is submitted by opposite parties that complainant was treated only as an outpatient and that first opposite party doctor had seen the complainant/patient only on the first day. The next day though complainant approached second opposite party hospital she was seen by another doctor who was on duty that day. First opposite party has specifically and vehemently denied that complainant gave history of the wound as fall in the closet. It is submitted by opposite party that complainant had come to the hospital and left the hospital by walking and that she did not exhibit any difficulty in walking as averred in the complaint. Complainant did not have such pain other than the pain following the injury so as to suggest achilles tendon involvement. Opposite party denies the presence of detectable cut to achilles tendon on the first day of examination, stating that if there was any such injury to tendon the complainant would not have waited for 3 weeks (upto 18-8-2003) to approach a doctor/hospital.

7. The foremost argument put forward by the learned counsel appearing for the complainant was that there is no evidence adduced on the side of opposite party either by affidavit, oral or documentary evidence and hence the complaint has to succeed. This was controverted by counsel for opposite party who submitted that doctors and hospitals need not be unnecessarily dragged to the courts because the initial burden to prove medical negligence rests upon the complainant. That only if complainant has discharged his onus of proof need the opposite party adduce evidence by way of rebuttal. It was also submitted that the complainant cannot succeed merely on the absence of evidence on the side of opposite party. This argument on the side of opposite party is not without force. The initial burden to prove medical negligence definitely rests upon the complainant. Hence we proceed to analyse whether complainant has succeeded in discharging this burden of proof.

8. According to the complainant she was treated by first opposite party doctor at second opposite party hospital on 30-7-2003 and 31-7-2003. She has reiterated this statement in the witness box and also placed reliance on Ext.A2 prescription. The treatment given by first opposite party on 30-7-2003 is admitted. Opposite parties denied that complainant was seen by first opposite party doctor on 31-7-2003. It is the case of opposite party that though complainant had approached second opposite party hospital on 31-7-2003, she was seen by another doctor who was as on duty. Opposite party urged that there is difference in handwriting in the doctor’s notes in Ext.A2 written on 30-7-2003 and 31-7-2003. On perusal of Ext.A2 undeniably there is difference in the handwriting and it is apparent that it is written by different doctors. Further Ext.A2 is only a photo copy and complainant has not produced the original of this material document for reasons which remain unexplained.

9. Undisputedly, the complainant was treated under opposite parties only as an out patient. It is her case that on the date of injury she had excruciating pain by which she could not press her log on the ground and had inability to walk. According to her as she had such pain, with inability to walk, and had given the cause of injury as fall in closet first opposite party doctor ought to have diagnosed that there was injury to achilles tendon. These contentions are consistently and specifically denied by opposite party who submits that complainant did not give the history of injury as fall in closet and that complainant had come to the hospital and left the hospital walking. That she had only normal pain following the injury. The oral evidence of complainant who was examined as PW1 discredits her own case and proves the contention raised by oppsoite party to be correct. Complainant has deposed that she came to the hospital walking. In cross examination she deposed......

“ഞാന്‍ സഹായത്തോടെ നടന്നാണ് hospital-ല്‍ പോയത്. എതൃകക്ഷി doctor അന്നേ ദിവസം മുറിവ് clean ചെയ്ത്, തുന്നികെട്ടി, injection തന്ന്, മരുന്നുകള്‍ കുറിച്ചു തന്നു. എല്ലാ ദിവസവും ആശുപത്രിയില്‍ വന്ന് മുറിവ് dress ചെയ്യാന്‍ പറഞ്ഞു. ഞാന്‍ പിറ്റേ ദിവസവും ആശുപത്രിയില്‍ പോയി. ആ ദിവസം എതൃകക്ഷി doctor-റെ തന്നെയാണ് കണ്ടത്. അന്ന് മുറിവ് dress ചെയ്ത് വിട്ടു. രണ്ടു ദിവസവും വളരെ ബുദ്ധിമുട്ടി നടന്നാണ് പോയത്.”

10. It was submitted on behalf of opposite party that if the achilles tendon was cut there would be inability to walk as well as to move the foot. In such situation the patient would not be able to wait for 3 weeks without seeing any doctor and taking treatment. That the complainant herein has waited for 3 weeks after the treatment under opposite party to approach another doctor which can only be, because there was no appreciable and detectable injury to achilles tendon which needed medical treatment, on the first day of consultation at second opposite party hospital.

11. It is correct that complainant has approached another doctor only on 18-8-2003. The doctor who treated the complainant subsequently was examined as PW2. This doctor has categorically deposed that the cut to achilles tendon is an emergency and that a patient in such a situation cannot wait for three weeks. PW2 has also deposed that if achilles tendon is fully cut the patient will be unable to walk. The evidence of PW2 in this regard is as under:

1. “Patient having tendon cut cannot wait for three weeks without treatment. It is an emergency. If the tendon is fully cut the patient will be unable to walk”.

2. “It is correct to say that in Ext.A5 I have noted in the column history that the tendon was partially cut. It is right that the tendon was not fully cut. This kind of cut can occur due to many reasons. I agree that such cut can occur due to physical activities. I agree that patients are usually advised to take rest if such wounds happen.”

2. “I agree that immobilisation of ankle is necessary in cases of achilles rupture. Otherwise there is a chance of re-rupture. It is correct to say that there is a condition of spontaneous rupture also.”

3. “It is correct to say re-rupture can occur due to rash handing of the area.”

4. “When I saw the patient for the first time, I don’t remember seeing suture on the wound. I do not agree that it is easy to diagnose the cut of tendon. Only experts can diagnose it”.

Ext.A5 is the discharge card issued from Farook hospital. It is seen stated that the tendon was partially cut. It is also seen from Ext.A5 that the surgery was done under local anesthesia. The above evidence of PW2 together with Ext.A5 discharge card would lead us to the conclusion that there was no appreciable injury to the tendon on the first day.

12. Another plea put forward by opposite party is that the non-appreciable injury if any to the tendon got worsened into an appreciable injury due to lack of rest and lack of proper care of the wound area by the complainant. Complainant’s own evidence proves that she has not taken any rest. She deposed that first opposite party did not advise her to take rest and asked her to walk well. This itself establishes that the injured/sutured ankle was not given any rest and proper care. Her evidence that first opposite party doctor asked her to walk well and not to take any rest is not supported by any pleadings or affirmation in the affidavit. It is usual that doctor’s advise for some rest in cases of fresh sutured wounds. Further it is not clarified by the complainant how, when and who had removed the sutures. These facts would sufficiently substantiate the contention of opposite parties that non-appreciable injury worsened due to carelessness on the part of complainant, and also in not obeying the order of the doctor for follow up treatment.

13. The independent expert medical evidence to prove that, in the given situation there was cut to achilles tendon and that this injury could have been invariably diagnosed by any doctor, under any circumstances, is absent before us. The delay of 3 weeks for taking treatment at Farook hospital corroborates the case of opposite party that there was no tendon injury so as to be taken care of, at the time of first consultation. Due to this delay, the possibility of the occurrence of the tendon injury, some time after the treatment under opposite party hospital cannot be ruled out.

14. Complainant has no case that the treatment and medicines prescribed are not according to the medical protocol for a cut injury. Her only case is that first opposite party failed to enter proper diagnosis. The true test for establishing negligence in diagnosis or treatment of a doctor is whether the doctor has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. The act of the doctor has to be judged by the conduct of the man on the top of a Clapham omnibus. The standard of care and skill to be shown is that of the ordinary competent medical practitioner. A doctor is only liable if he falls short of this standard. After examing a patient the doctor forms an opinion about the ailment. Such opinion may differ from one doctor to another basing upon skill and experience. An error of clinical judgment does not always amount to negligence. From the evidence and materials placed before us it is established that there was no appreciable and detectable injury to the tendon on the day when complainant consulted first opposite party. Further PW2 has stated that it is not easy to diagnose such injury to tendon if present, and that only experts can diagnose it.

15. From the above discussions, we have no hesitation to conclude that the complainant has failed to establish any case of medical negligence against opposite parties. We have no doubt to hold that first opposite party doctor has safely passed the Bolam test. We do find opposite parties deficient in service.

16. In the result, we dismiss the complaint. There is no order as to costs.

Dated this 18th day of March, 2010.

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN,

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1 and PW2

PW1 : Suharabhi, Complainant.

PW2 : Dr. S. Venkitesh, Farook Hospital, Feroke.

Documents marked on the side of the complainant : Ext.A1 to A10

Ext.A1 : Token No.3478 dated, 30-7-2003 given by opposite party to complainant.

Ext.A2 : Photo copy of the prescription dated, 30-7-2003 given by opposite party to complainant.

Ext.A3 : Prescription dated, 18-9-2003 given by Farook Hospital to complainant.

Ext.A4 : Discharge card dated, 11-10-2003 given by Farook Hospital to complainant.

Ext.A5 : Discharge card dated, 28-8-2003 given by Farook Hospital to complainant

Ext.A6series : Receipts (10 Nos.) from Farook Hospital to complainant.

Ext.A7 : Bill for Rs.72/- dated, 22-10-2003 from Farook medicals

Ext.A8 : Photo copy of the lawyer notice dated, 14-11-2003 from complainant’s counsel to

opposite parties.

Ext.A9 : Reply notice dated, 24-11-2003 from first opposite party to complainant’s counsel.

Ext.A10 : Reply notice dated, 24-11-2003 from second opposite party to complainant’s counsel.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Nil

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN, MEMBER

E. AYISHAKUTTY, MEMBER