SMT. RAVI SUSHA  : PRESIDENT

         Complainant has filed this complaint  U/S 35 of Consumer Protection Act 2019  ,seeking to  get an order directing  the opposite parties to pay Rs.5,32,000/- jointly and severally towards compensation  to the complainant  on account of negligence on the part of OPs 1&2 together with cost of the proceedings.

  Brief facts of the case are that the complainant had a stroke and  apart from that he had a fall on 27/7/2019 by which  he had sustained intertrochanteric fracture to left femur and for that PFN fixation  was done from Thalassery on 28/7/2019.  Thereafter for better treatment, the complainant got admitted at the 2^nd Op hospital and accordingly he was an impatient on 15/8/2019 to 16/8/2019.  After discharge from the hospital, as advised by the doctors who attended the complainant  while he was under treatment at the hospital of 2^nd OP, the complainant started to undergo physiotherapy  treatment  at the same hospital  under 1^st OP. While  undergoing  physiotherapy  treatment at 2^nd OP hospital under the 1^st OP, the complainant suffered fracture to his shaft of femur on 26/12/2019 due to the  sheer negligence of the 1^st OP who performed the  physiotherapy treatment .  If 1^st OP had taken  a minimum care in this regard, this incident should not have taken place.  As stated above,  both the OPs were fully equipped with the medical records of the complainant and the same will reveal the physical disability and condition of the patient.  From the conduct of 1^st OP, it is evident that he has even failed to understand the requirements of the patient and the ignorance of  or the intentional avoidance of the medical records  and absence  of proper care lead to  this incident.  In this regard it is also evident that 2^nd OP also failed to take  proper care and caution to  give proper treatment to the complainant, it is quite clear that the incident was the outcome of the breach of  duty and negligence on the part of  both the OPs.  Immediately after the incident  due to the negligence of 1^st OP, the complainant was shifted to the Ortho department at the instance of 1^st OP and from there he was treated as an impatient till 3/1/2020.  For this treatment alone, complainant had to pay Rs.2,22,000/- as medical  bill to 2^nd OP hospital n dap[art from that Rs.60,000/- paid  towards physiotherapy treatment . On 9/6/2020  complainant sent  lawyer notice to both OPs,  but so far they have neither complied with the demands made therein nor sent any reply.  Hence the complaint.

    Both the OPs filed their version.  The OPs averred that there is no negligence or deficiency in service on  their part .  The complainant was treated as per the universally accepted standard medical protocol, all care, caution  and attention. The 1^st OP is a well qualified and highly experienced physiotherapist.  Ops submitted that on 17/8/2019 the complainant consulted Dr.Salam, Head of Neurosciences  at the 2^nd OP hospital for his stroke related ailments and was referred for physiotherapy.  As per the patient  history of the complainant, a 68 aged  male with a  case of right sided middle cerebral artery stroke for which he underwent thrombolysis in 2017 and was suffering from diabetes Mellitus which subsequently developed in to sepsis, multi organ dysfunction, arterial fibrillation and was on treatment for the above conditions at various other hospitals.  In July 2019 the complainant had a trival fall and sustained fracture  of left hip and was operated . The fracture was fixed using the short PFN (proximal Femoral Nail) system  .  Thereafter the complainant visited the 2^nd OP and there Dr.Salam referred him for physiotherapy. The  complainant attended physiotherapy sessions under the 1^st OP  at frequent intervals  and on initial assessments the 1^st OP found that the complainant had weakness on the left side of his  body  and grade 4 spasticity of the  left side limbs and also had flexion contracture of his elbow.  The complainant had profound weaknesses on his   upper limbs(grade1/5) and also weakness on his left lower limb(grade 2/5)  and he was bedridden and was not ambulate because of his physical disabilities.   The 1^st OP started the standard medical treatment protocol  which included graded stretching of upper limb, passive mobilization of the limbs, and mat activities for the patient.  Over a period of  time the patient, due to the treatment provided by the 1^st OP, was able to sit and stand with support and his elbow movement also improved.  But due to the patient’s long term immobilization in bed, his muscle and  bone strength were compromised(fracture disease) and due to  which the patient’s knee range of motion of the patient was not improving  because of  spasticity.  While providing  treatment to the patient, the 1^st OP always  undertook great precautions while mobilizing him and making him to exercises.  On 26/12/2019 in the physiotherapy Department  while the patient’s physiotherapy exercises were being done  on a mat and while attempting to make him sit with the knee being supported, sudden snapping sound was heard and he developed severe pain in the left thigh and was unable to bear his weight and confirmed that there was a spontaneous fracture.  The patient was immediately shifted to the  Emergency Department at the  2^nd OP hospital and on further discussion with the Orthopedist. 1^st Op came to know that the fracture occurred just distal to the tip of the previous  nail which was abutting the cortex of the left femur and as the patient  has previously undergone a surgery for his fracture of left hip and the same was fixed with short PFN system, there is always a possibility of developing another fracture  just distal to the tip of the nail. Due to the age of the patient  and due to  osteoporosis, his bones were very weak and brittle, and left side of his body was completely weak because of  stroke and during  admission  the wife of  the complainant had told the  1^st OP that she had arranged some boys for nursing  care of the  patient at their home and they used to give the patient  vigorous exercises for upper limbs and lower limbs.  Along with the previously mentioned reasons coupled with inappropriate vigorous exercises given by the  boys deputed for providing nursing care to the patient at his home might have caused too much stress and trauma on his  even  otherwise weak bones and thus ultimately resulting in a crack in the bone.  The physiotherapy exercises and care given by  the 1^st OP were as  per the  universally accepted standard medical protocol. The fracture happened is medically accepted and well documented.  The patient was given appropriate treatment and management as the situation warranted. The unfortunate fracture occurring just distal to the tip of the previous nail in the left femur not due to any negligence or carelessness on the part of the OPs but it was due to the factors like the complainant’s  old age  and co morbidities along with  a  possible chance of developing fracture to the distal tip of the PFN nail coupled with vigorous exercises or upper limbs and lower limbs done unscientifically at home, on the basis of these  averments, sought the complaint to be dismissed

   At the time of evidence, the wife of the complainant examined as PW1 and got Exts.A1 to A6 series marked in  evidence.  The OPs examined , 1^st OP as DW1, the Chairman of 2^nd OP hospital  Dr.George Abraham  as DW2,  Marked case record  from 2^nd OP hospital pertaining to the treatment of the complainant as Ext.B1 series and Dr.Riyas, Associate Professor Dept. of Orthopedic , Govt. Medical College Kannur as DW3.  After the evidence the learned counsels  for the complainant and the OPs made oral argument and the learned counsel of  OPs filed written argument note with judgments of Hon’ble Supreme Court.

       We have examined the entire material on record and given  due consideration to the argument advanced before us and the judgment of Hon’ble apex court.

       Having regard to the pleadings of the parties, the only point  that arises for our consideration is – whether 1^st OP had given a wrong method without giving minimum care  in giving physiotherapy treatment at 2^nd OP hospital  caused the fracture of the shaft of femur  of the aged complainant on 26/12/2019.

      Complainant has stated that while undergoing physiotherapy treatment at 2^nd OP hospital under the 1^st OP, the complainant suffered fracture to his shaft of femur on 26/12/2019 due to the sheer negligence of the 1^st OP who performed the  physiotherapy treatment .  If 1^st OP had taken  a minimum care in this regard, this incident should not have taken place.  As stated above,  both the OPs were fully equipped with the medical records of the complainant and the same will reveal the physical disability and condition of the patient.  From the conduct of 1^st OP, it is evident that he has even failed to understand the requirements of the patient and the ignorance of  or the intentional avoidance of the medical records  and absence  of proper care lead to  this incident.  In this regard it is also evident that 2^nd OP also failed to take  proper care and caution to  give proper treatment to the complainant, it is quite clear that the incident was the outcome of the breach of  duty and negligence on the part of  both the OPs.

    According to complainant 1^st OP should have given due care about the physical inability condition and old age of the complainant.

   Ext.A2 discharge summary shows that  on the admission date, at 2^nd OP hospital on 15/8/2019 the condition of the complainant was” Sasindran P. C ,67 years , case of right MCA stroke-cardioembolic(Thrombolysed-Jan 2017) Atrial Fibrillation, Hypertension, diabetes Mellitus and COPD, presented to us with worsening weakness and decreased response.  He was walking with support with left residual weakness after the stroke.  While he was in abroad , on 27 July 2019, he had  a fall, came to India and found that he had sustained intertrochaneric fracture left femur,PFN fixation done from Thalassery on 28/7/2019” and the course in the hospital  shows that “ the patient had features of thyrotoxicosis and neomercazole was started temporarily in consultation with endocrinologist.  Thyroid functions are now normal and he is off neomercazole.  The patient was  started on BiPAP support, his  blood culture grew enterococcus faecium and  antibiotics were escalated.  His renal functions and liver functions were worsening  with decreased urine output and he was initiated on hemodialysis.  He had a hemoglobin drop, 1 unit PRBC was transfused.  Patient became clinically better, hemodynamically stable and was shifted to the ward.  Patient was  restarted on Dabigatran.  “ Physiotherapy, speech therapy and supportive measures were continued.  Presently patient is conscious, oriented, able to speak a few  words but he needs ryle’s tube feeds.  He is gradually improving and we have advised him to continue physiotherapy and rehabilitation measures”. 

   DW3, Orthopediatrician  the expert doctor, has deposed that page (1) & (2)  “ In a case of an elderly patient with lot of comorbidicts including a previous history of stroke diabetis Mellitus, Hypertension, atrial Fibrillation and cronic obstructive pulminarary disease with severe osteoporosis  who has undergone fracture fixation of  hip, will you advise physiotherapy? Yes, patient is having lot of comorbodietis as mentioned, after fracture fixation  if physiotherapy has not done again the borne become more weaker mussels will  become more atrophied(disuse atrophied this will cause more harm to the patient  if physiotherapy  has not done  after surgery  .   Ext.A2 case record also revealed that there was improvement on the physical condition of the patient by doing physiotherapy.

     OPs version is that the  complainant attended physiotherapy sessions under the 1^st OP  at frequent intervals  and on initial assessments the 1^st OP found that the complainant had weakness on the left side of his  body  and grade 4 spasticity of the  left side limbs and also had flexion contracture of his elbow.  The complainant had profound weaknesses on his   upper limbs(grade1/5) and also weakness on his left lower limb(grade 2/5)  and he was bedridden and was not ambulate because of his physical disabilities.   The 1^st OP started the standard medical treatment protocol  which included graded stretching of upper limb, passive mobilization of the limbs, and mat activities for the patient.  Over a period of  time the patient, due to the treatment provided by the 1^st OP, was able to sit and stand with support and his elbow movement also improved.  But due to the patient’s long term immobilization in bed, his muscle and  bone strength were compromised(fracture disease) and due to  which the patient’s knee range of motion of the patient was not improving  because of  spasticity.  While providing  treatment to the patient, the 1^st OP always  undertook great precautions while mobilizing him and making him to exercises.  On 26/12/2019 in the physiotherapy Department  while the patient’s physiotherapy exercises were being done  on a mat and while attempting to make him sit with the knee being supported, sudden snapping sound was heard and he developed severe pain in the left thigh and was unable to bear his weight and confirmed that there was a spontaneous fracture.  The patient was immediately shifted to the  Emergency Department at the  2^nd OP hospital and on further discussion with the Orthopedist.

    The expert doctor DW3 deposed that in page 2 “    In such cases  there is always a possibility of fracture happening? Yes. Will such a  possibility of  fracture  defer you from  advising  physiotherapy to such a patient? No.   Further deposed that in page 3 “ It is the universally accepted  standard medical protocol regarding  treatment and management of such patient? Yes.  It is imperative such patient are given physiotherapy.  Failure to do so will be  calstrophic to the patient.  There is no  negligence in doing  physiotherapy by 1^st OP to the patient.  If short PFN is  used for fixing  fracture  there is possibility of stress riser at the  tip of the implant.  Which can cause fracture.”

    OP’s version is that due to the age of the patient  and due to  osteoporosis, his bones were very weak and brittle, and left side of his body was completely weak because of  stroke and during  admission  the wife of  the complainant had told the  1^st OP that she had arranged some boys for nursing  care of the  patient at their home and they used to give the patient  vigorous exercises for upper limbs and lower limbs.  Along with the previously mentioned reasons coupled with inappropriate vigorous exercises given by the  boys deputed for providing nursing care to the patient at his home might have caused too much stress and trauma on his  even  otherwise weak bones and thus ultimately resulting in a crack in the bone.  The physiotherapy exercises and care given by  the 1^st OP were as  per the  universally accepted standard medical protocol.”

   During cross examination of PW1, she admitted that in page 2 “ എതൃകക്ഷികളുടെ അടുത്തല്ലാതെ തന്നെ physiotherapy ചെയ്തിരുന്നു? ചെയ്തിരുന്നു.  വീട്ടിൽ nursing care കൊടുത്തിരുന്നു എന്ന് പറഞ്ഞാൽ? ശരിയല്ല. physiotherapy യ്ക്ക് മാത്രമാണ്  ആള് ഉണ്ടായിരുന്നത്.  Further deposed that വീട്ടിൽവച്ച് physiotherapy ചെയ്തവരുടെ qualifications എന്തെങ്കിലും ഉണ്ടോ? ഇല്ല. അവർ ഇപ്പോഴും തലശ്ശേരിയിലാണ് ചെയ്യുന്നത്.                                                         

      These circumstances would clearly go to show that the deformity over left thigh during physiotherapy from the PMR department to the complainant, was not due to the negligence of the  physiotherapist, 1^st OP.

   The learned counsel of OPs submitted a number of  decision and judgment of Hon’ble Supreme Court and National Commission.   It is submitted that  non examination of the complainant and any expert is fatal to the case of the complainant.  Thus, the complainant has failed to discharge the burden of proof cast on him.  Hon’ble Supre me Count in Iswar Bhai C Patel & Bchu Bhai Patel vs. Harihar Behere & Anr. I(1999)BC 580(SC), II(1999) SLT 597 16/3/1999 has held that “ if a party abstains from entering the witness box, it must give rise to an inference adverse against him”.  In Smt.Ramesh Sharma vs  Tagore Heart Care& Research Centre & Ors 2008(4) CPR 493(NC) it has been held by the National Commission that “ In respect of alleged medical negligence, burden heavily lies on complainant to prove such negligence- the injury to the reputation of medical professional is very  serious and liable to be  appreciated”. The Hon’ble commission relying on different decisions and principles laid down by the Apex Court had in Dharam Singh vs. Chawla Hospital 7 Nursing Home & anr- IV (2015)CPJ 678(NC), Ranibala & anr. , Dr.Satya Prakash Bansa ,IV(2015) CPJ 619(NC), Pallyu Srikanth & Anr vs. Krishna Institute of Medical science Ltd & Ors  I(2017) CPJ 619 (NC) held that it is settled legal position that the  onus of  proving the alleged negligence in the treatment of the patient lies with the person alleging medical negligence, and therefore, the onus was upon the  complainant  to  positively prove that the doctor  was negligent by  adducing  expert evidence.  It was further held that only because the patient died or suffered any mishap, it cannot be taken as medical negligence of the treating  doctor, especially because medical science is not an exact science, and in spite of all care, caution and attention  on the part of the treating doctor, something  may always go wrong.  In S.K.Jhunjhunwala vs Dhanwanti kaur and Anr, II(2019CPJ 41(SC), III(2019)SLT 465, (2019)2SCC 282 held that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent.

   Further submitted that  it is held by the  Hon’ble Supreme Court and the National Commission that medical negligence cases cannot be decided without cogent evidence of negligence, and the decision should not be based on the consequence, but on the causation alone.  The complaint has to prove this with proper evidence, including that of an expert . In Ms.Rohini Devi vs Dr.H.S Chudavat & anr 2001(3) CPR 171(NC) it has been held that medical negligence has to be proved by the complainant by examining expert witness.  In Rishi Pal Singh & ors vs. Aligarh Muslim University & anr 2007(1)CPR 433(NC) it has been held that Onus on complainant-need for expert evidence- when no evidence was led by complainant to show as to what should have been done by the  OP which was not  done or what  was done, which should not have been done, the complaint about medical negligence is liable to fail.  In shri.K.Venkateshwarlin ,Managing Director, Nagarfunu Hospital, Vijayawada 2006(1)CPR 68(NC) it has been held that to prove the negligence of any doctor, the complainant has to lead adequate evidence with supportive medical  text.  In Sikha Nayak vs. Dr.Manabeshpramanick 2006(1)CPR 265(NC) it has been held that no finding of negligence unless there is clear expert evidence to support such a finding.  In Indejeet Singh vs Dr.Jagdeep Singh 2004(2) CPR 45 (NC) it has been held that in the absence of expert evidence, complaint alleging medical negligence would not succeed.   DWs 1&2 deposed in tune of their version.

  Here there is no dispute raised by complainant regarding the qualification, and experience of 1^st OP.

   Having regard to the facts and circumstances as stated above and from the decisions of Appellate commission, complainant failed to prove medical negligence on the part of opposite parties for causing deformity happened to the left hip of the complainant while doing physiotherapy by 1^st OP on  26/12/2019 at 2^nd OP hospital .

   In the result, therefore, this complaint fails and it is dismissed.  No order as to cost.

Exts:

A1&A2- Discharge summary dtd.3/1/2020,16/10/2019

A3series-Medical bills(8 in Nos.) by 2^nd OP

A4-Inpatient bill dtd 26/12/2019 to 3/1/2020

A5- copy of lawyer notice

A6 series- postal acknowledgment

B1 series-case record from  2^nd OP

PW1-Heera.P- witness of  complainant

DW1- Jyothi.K.P-1^st OP

DW2-Dr.George Abraham-2^nd OP

DW3-Dr.Riyaz.N.N-witness of OP

Sd/                                                   Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR