By Smt. C.S. Sulekha Beevi, President,
1. Complainant sustained fracture due to fall on 10-5-2007 and approached the Mercy hospital, Kondotty. First opposite party examined the complainant and referred him to second opposite party hospital. He underwent the treatment of first opposite party at second opposite party hospital. First opposite party made him believe that the treatments were successful and he would get relief soon. But complainant had pain and disability. Complainant took an x-ray to ascertain the result of treatment and then realized that the fracture had not united. It is stated that when he confronted first opposite party with this x-ray, first opposite party panicked and went to the extend of bad mouthing the complainant. Later complainantunderwent treatment at Al-Shifa Hospital, Perintalmanna from where his fracture was fully cured. It is alleged that first opposite party did not follow proper method of treatment and has committed gross deficiency in service. Hence this complaint claiming total compensation of Rs.70,000/- on various heads along with interest and costs.
2. First opposite party filed version submitting that he is working as consultant and orthopeadic surgeon in Al-Abeer hospital, Kuzhimanna and that complainant had consulted him on 16-5-2007 with complaints of pain and swelling over the right upper arm and shoulder due to fall. Patient gave history of having Ischemic Heart Disease (hereafter mentioned as IHD) in the recent past. A diagnosis of fracture of the humerus was made and X-ray was advised. X-ray confirmed the diagnosis of comminuted fracture of the upper end of the humerus. Patient was advised open reduction with internal fixation (ORIF) with plate and screw under general anaesthesia. Patient refused invasive procedure since he was a cardiac patient. The patient was then given the option of fixing the fracture with K-wires and immobilisation with plaster of paris (POP)slab. After informing about the advantages and disadvantages of both procedures, patient and his relatives decided to take K-wiring and POP slab procedure under local anaesthesia and sedation. After taking informed consent and under asceptic precautions, complainant was subjected to closed K-wiring and POP slab immobilisation under local anaesthesia and sedation on 16-5-2007. Check X-ray showed proper alignment of fracture. Patient was discharged the same day and was advised to come for regular follow up. He came for follow up treatment. Check X-rays taken on 14-6-2007 and 02-7-2007 showed progress. The X-ray taken on 31-7-2007 showed that the fracture had not united. So complainant was advised that there was no other option left other that ORIF method. Patient wanted go to higher center and was referred to Kozhikkkode Medical college. That first opposite party had given appropriate, standard treatment and also the best attention and care. That first opposite party acted with reasonable skill and diligence as could be expected from any other orthopaedic surgeon in identical circumstances. The other allegations are specifically denied. That there is no deficiency in service and that complainant is not entitled to any reliefs.
3. Second opposite party who is the Managing Director of the hospital has filed version denying the allegation of negligence. It is stated that the doctors and and para medical staff have discharged their duties and functions with due care, caution, professional skill and competence. That the treatments given were in accordance with well established procedure by qualified doctor. Complainant's attempt is only to tarnish the reputation of the hospital and that the complaint is only to be dismissed.
4. Evidence consists of the oral evidence of PW1 who is a witness examined on behalf of complainant and that of complainant who was examined as PW2. Exts.A1 to A25 marked for complainant. Second opposite party examined as DW1. Ext.B1 marked for second opposite party.
5. Points for consideration:- (i) whether opposite parties are guilty of medical negligence. (ii) If so, reliefs and costs.
6. Point (i):- To avoid repetition the facts are not narrated again. Complainant has no case that the doctor who treated him did not possess the requisite qualification and so this point does not arise for consideration.
7. We have to say that the allegation of medical negligence as averred in the complaint and as affirmed in the proof affidavit is blurred. It is merely stated that opposite party failed to render proper service and advices at the relevant time. From the totality of pleadings, evidence and submissions made at the time of hearing the allegation put forward by complainant can be summed up as under. (i) That first opposite party doctor did not apply ORIF method at the first instance itself. Instead opposite party adopted external fixator method. As a result of this there was non-union, which is negligence. (ii) Thereafter complainant had to undergo ORIF treatment at Al-Shifa Hospital, Perintalmanna for which complainant had to undergo further admission and also incur expenses. It is stated that complainant was cured after the treatment at Al-Shifa.
8. Abjuring from the allegation of medical negligence it is submitted by first opposite party that he had adopted a procedure of fracture management which is accepted in medical practice. It is his case that taking into consideration the cardiac complaint of the complainant he opted for external fixator method. When this method did not result in the expected union of fracture he advised the complainant to undergo ORIF treatment. Opposite party has submitted that the history of complainant revealed that he was a known patient of Ischemic Heart Disease. Being highly risky to do ORIF under general anaesthesia to such a cardiac patient, after informing the patient and relatives of the options of procedures available and only with the consent and agreement of the patient first opposite party adopted external fixator method which was done under local anaesthesia and sedation.
9. Complainant does not dispute that he was suffering from heart disease. Ext.A1 is the prescription dated, 10-5-2007 issued to complainant by opposite party. On the reverse side of Ext.A1 it is stated by the doctor as under: “Comminuted fracture upper end of Humerous ® In view of highly comminuted nature and patient being high risk for anaesthesia – he is planned for conservative management with POP”.
10. This decision and explanation for adopting external fixator method and POP treatment is seen recorded by the doctor in Ext.A6 discharge card issued to the complainant. This explanation is corroborated by Ext.B1 treatment records. Exts.A1, A6 and Ext.B1 documents establish that though first opposite party was well aware that ORIF could also be chosen as a method of management of fracture he opted for conservative management taking into consideration the heart disease of the patient. Consent is also seen obtained for external fixator method by closed reduction and percutaneous pinning with 'K' wire procedure. Ext.21 is the discharge card issued from Al-shifa hospital from where complainant underwent subsequent treatment. It shows that complainant was under treatment and care of cardiology department also. The diagnosis noted in Ext.21 are as follows:- Ebstein anamoly (ii) Mild TR (iii) Inferior wall Myocardial Infarction.(iv) Masstz type II block.
Ext.21 together with the discharge card issued from the orthopaedics department of Al-shifa hospital reveals that the orthopaedic treatment (ORIF) was done to the complainant at Al-shifa hospital under the constant monitoring control and co-ordination of the cardiologist. PW1 who is the cardiologist who attended the complainant at Al-Shifa has deposed that the complainant when examined by him was a high risk candidate for surgery but he was fit. He has also stated that giving general anaesthesia is a high risk factor as regards a cardiac patient. It is candid and proved from records that first opposite party did not opt for ORIF in the first instance only with the bonafide intention of avoiding greater risks and complications that may arise on applying general anaesthesia. On evaluation of health condition of the patient first opposite party decided to adopt conservative management of fracture under local anaesthesia and sedation.
11. The other allegation raised is that first opposite party did not inform/advise about the two different methods available and that complainant was not given the option to choose. Opposite party has affirmed that conservative management was adopted only after informing to the patient and relatives and only after their consent and agreement. At the cost of repetition, we have to say that the consent given in the consent form is for external fixator method and not ORIF. Ext.A1 and A6 which are documents issued to the complainant by the first opposite party clearly states and explains the procedure adopted by first opposite party and the reason for adopting such conservative procedure. Further complainant (PW2) has deposed that he was informed that an alternative method under sedation is being done. PW2 has stated as follows: "ഞാന് ഹൃദ്രോഗിയായതുകൊണ്ടാണ് ORIF അല്ലാതെ മറ്റൊരു ചികിത്സ ചെയ്യുവാന് കാരണം എന്നു പറഞ്ഞാല് എനിക്കറിയില്ല. എന്െറ നന്മക്കും അപകടം ഉണ്ടാകാതിരിക്കാനുമാണ് opposite party No.1 മറ്റൊരു ചികിത്സ ചെയ്തത് എന്നു പറഞ്ഞാല് ശരിയല്ല. ചെറിയ മയക്കു തന്ന് മറ്റൊരു ചികിത്സ ചെയ്യുകയാണ് എന്നാണ് പറഞ്ഞത്. “ From the above evidence we are unable to believe the contention of complainant that he was not properly advised or informed about the procedures and also that opposite party was adopting an alternative procedure to avoid the risk of general anaesthesia. Hence the argument on the side of complainant that he was not properly advised or informed about the procedures available in treatment and that which was adopted by first opposite party is unacceptable to us.
12. The further argument advanced by the counsel appearing for complainant is that the purpose of undertaking a treatment is to get cured from the disease. It is submitted that when the fracture did not unite after treatment it is per se negligence. This argument on behalf of complainant in our view is totally baseless. The result of a treatment cannot be a criteria to attribute negligence upon the treating doctor. It is settled position of law that simply because a patient did not favourably respond to a treatment given by a doctor, or a surgery has failed the doctor cannot be held liable.
13. The onus to prove medical negligence lies largely on the claimant, and this has to be discharged by leading cogent evidence. If complainant has a case that ORIF was the only procedure that could be applied in the given situation and circumstances then he has to substantiate it with adequate medical expert evidence. Such evidence is absent before us. In fact while cross-examining DW1 there has not even been the slightest challenge about the procedure adopted by opposite party. The affirmations of first opposite party in the affidavit in regard to the method of treatment adopted by him and treatments given are proved and established being unchallenged.
14. To substantiate that complainant was given the proper treatment counsel for opposite party relied on the excerpts from various medical texts. It was brought to our attention that a conclusion of non union cannot be arrived unless after an elapse of time. In the present case the injury/fracture happened on 10-5-2007 and after the treatment on 16-5-2007 under first opposite party complainant underwent subsequent treatment of ORIF on 22-8-2007. In page 1288 of Campbell's Operative Orthopaedics (Vol.II) eighth editions Published by Mosby – Year Book, Inc. it is stated as under: “A fracture of the shaft of a long bone should not be considered a non-union until at least 6 months after injury because often union requires more time, specially after some local complication such as infection.”
“The exact causes of non-union are unknown. In a review at this clinic of 842 patients with non-unions of long bones, Boyd, Lipinski and Wiley found that non-union was more common when the fractures were (1) open (2) infected (3) segmental with impaired blood supply, usually tot he middle fragment (4) comminuted by severe Trauma.” Other quotings regarding non-union was submitted from the medical text Current-Diagnosis and treatment – Orthopaedics – by Harry B. Skinner 4th edition, Published by Tata McGrew-Hill Publishing Co. Ltd. In chapter III page 94 it is stated as under: “Despite the best efforts and treatment, a certain percentage of fracture will fail to unite”. Placing reliance upon page 123 of this book it was submitted that in instances of two part surgical neck fractures, “one attempt at closed reduction is advisable. If this fails operative intervention is recommended. If, on the other hand reduction is successful, percutaneous pinning under fluoroscopic control may be an excellent choice for the reducible but unstable fracture”.
15. It was submitted by counsel for opposite party that opposite party had adopted the correct treatment as per medical literature. Even if we assume that second opposite party did not adopt ORIF treatment in the first instance this will not amount to negligence unless it is proved and established that conservative method is totally unacceptable in medical practice in the given situation. The law laid by the Apex Court in Jacob Mathew Vs. state of Punjab & Another 2005 CTJ 1085(SC)(CP) and the recent decision Martin F.D'Souza Vs. Mohammed Ishfaq 2009 CTJ 352 (SC)(CP) is as under: “So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.”
In the present case the doctor has established his consistent case supported by documents why he opted for conservative management. No materials brought on record to say that the selection of treatment or it's administration was not as per practice followed by large number of professional in such cases.
16. On the aforesaid discussions, based on materials on record, the medical literature and also the examination of witnesses we are of the view that no case of medical negligence has been made out by complainant against opposite parties. We find opposite parties not deficient in service. Point found against the complainant. 17. In the result we dismiss the complaint. There is no order as to costs.
Dated this 6th day of August, 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 & PW2 PW1 : Dr. Shafeeq Mattummal, witness. PW2 : Mohammedkutty, Complainant. Documents marked on the side of the complainant : Ext.A1 to A25 Ext.A1 : Prescription dated, 19-5-2007 from Mercy Hospital to complainant. Ext.A2 : X-ray photograph dated, 10-5-2007 from Mercy X-rays to complainant. Ext.A3 : X-ray photograph dated, 11-5-2007 from Mercy X-rays to complainant. Ext.A4 : X-ray photograph dated, 16-5-2007 from opposite party's hospital to complainant. Ext.A5 : Registration Card from opposite party's hospital to complainant. Ext.A6 : Discharge card from opposite party's hospital to complainant. Ext.A7 : Prescription dated, 02-7-2007 from opposite party's hospital to complainant. Ext.A8 : Prescription dated, 14-6-2007 from opposite party's hospital to complainant. Ext.A9 : X-ray photograph dated, 14-6-2007 from opposite party's hospital to complainant. Ext.A10 : X-ray photograph dated, 02-7-2007 from opposite party's hospital to complainant. Ext.A11 : X-ray photograph dated, 02-7-2007 from opposite party's hospital to complainant. Ext.A12 : Prescription dated, 13-7-2007 from opposite party's hospital to complainant. Ext.A13 : Prescription dated, 26-7-2007 from opposite party's hospital to complainant. Ext.A14 : X-ray photograph dated, 20-8-2007 from opposite party's hospital to complainant. Ext.A15 : Reference letter dated, 20-8-2007 from first opposite party to Dr. Sreejith, Lecturer in Orthopaedic. Ext.A16 : X-ray photograph dated, 22-8-2007 from Al-shifa Hospital, Perintalmanna to complainant. Ext.A17 : X-ray photograph dated, 24-8-2007 from Al-shifa Hospital, Perintalmanna to complainant. Ext.A18series : Bill and receipt for Rs.41/- dated, 02-7-2007 from opposite party's hospital to complainant. Ext.A19series : Receipts (29 Nos.) from Al-shifa Hospital, Perintalmanna to complainant.
Ext.A20 : Cash bill for Rs.92/- from Ganesh Medicals to complainant prescribed by opposite party. Ext.A21 : Discharge Summary dated, 27-8-2007 from Al-shifa Hospital, to complainant. Ext.A22 : Discharge card dated, 27-8-2007 from Al-shifa Hospital, to complainant. Ext.A23 : Prescription from Al-shifa Hospital, to complainant. Ext.A24 : Prescription dated, 03-3-2008. Ext.A25 : Receipts (9 Nos.) from Al-shifa Hospital, Perintalmanna to complainant. Witness examined on the side of the opposite parties : DW1 DW1 : Dr. Khalell Ahammed, D Ortho., first opposite party. Documents marked on the side of the opposite parties : Ext.B1 Ext.B1 : Hospital records of complainant produced by opposite party.
Sd/- C.S. SULEKHA BEEVI, PRESIDENT
Sd/- MOHAMMED MUSTAFA KOOTHRADAN, Sd/- MEMBER E. AYISHAKUTTY, MEMBERUTTY, MEMBER
......................AYISHAKUTTY. E ......................C.S. SULEKHA BEEVI ......................MOHAMMED MUSTAFA KOOTHRADAN | |