SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986 relates to treatment and surgery of the complainant conducted by the 1st opposite party Dr. Narayana Prasad, alleging medical negligence and deficiency of service.
Facts in brief are that the complainant sustained a fracture on his right hip joint due an accident fall on 16/09/2017 and immediately he took initial treatment on the same day. Thereafter he felt some discomfort and acute pain. Hence he was admitted in OP NO.2 hospital on 19/09/2017 and consulted OP No.1 doctor the orthopedic surgeon. OP No.1 diagnosed a fracture on the right hip joint of the complainant and advised an emergent surgery and the surgery was performed on 22/09/2017 OP No.1. He was discharged on 25/09/2017with an advice to follow up. He visited the OP No.1 for reviewing the progress of surgery done hip joint on 03/10/2017, 02/11/2017 and 06/12/2017. In all those occasions, informed OP No.1 about his discomfort and pain in the operated part of his limp. Finally on 12/02/2018 the complainant was examined by OP No.1 and found that the operation conducted by him was not successful and he diagnosed that there was non-union of the hip joint”. OP No.1 then suggested for Isotope scan and for further treatment OPNo.1 orally referred the patient to MIMS Hospital, Calicut. So he has to go to MIMS Hospital, Calicut. Complainant submitted that the discharge summary issued by OP No.1 was prepared in a negligent manner. OP No.1 intentionally stated in the discharge card that the injury was caused 10 days back. So he felt difficult to explain his physical condition for further treatment at MIMS Hospital. From the doctors at MIMS Hospital, it was found that the OP No.1 had not conducted the operation properly and the implant has to be removed and re-fixation or HIP replacement if necessary. For getting a second opinion, complainant approached in Tejasvini hospital, Manglore on 12/02/2018 as an outpatient and diagnosed that “varus collapse and shortening of leg” and advised for the removal of the implant of the previous surgery and re-fix the implant through another surgery. The complainant was admitted on 18/03/2018 and surgery was conducted on 19/03/2018 for removing the old implant and to insert a new one to correct the defect of the right hip joint at Tejasvini Hospital, Manglore. The complainant was discharge on 31/03/2018 with an advice of follow up treatment and the final review on 18/12/2018 the doctors of Tejasvini Hospital Manglore confirmed that the hip joint was united. This complainant submits that, due to the negligent treatment and surgery conducted by the OPs the complainant suffered mentally and physically and had sustained huge financial loss. Hence the complaint.
After receiving notices OPs1 and 2 filed separate versions. The contentions in both versions are more or less same. It is stated by the OPs that the complainant reported to the 2nd OP hospital on 21/09/2017 with complaint of pain on right hip allegedly caused by fall at home 10 days back and took native treatment for the same. The 1st OP had examined the patient and on the basis of X-ray he was diagnosed to have sustained trochantric fracture of right hip. The nature of fracture sustained by the complainant and its treatment by way of closed reduction and fixation of fracture as well as chances of complications like infection, mal union, non union or delay in fracture healing and also chance for difficulty in fracture reduction due to delay in seeking treatment were explained to the complainant and his bystanders. The complainant and his bystanders voluntarily agreed for surgical treatment for fracture fixation and signed written informed consent. After necessary pre-operative investigations medical consultation and pre-anesthetic evaluation surgery was posted to 22/09/2017. On 22/09/2017 the 1st OP conducted closed reduction and internal fixation of fracture right hip with short PEN A2 implant with utmost care and under sterile precautions. Good reduction was achieved and fracture was stabilized with PEN A2 as per standard protocol. Post operative check X-ray showed satisfactory reduction of fracture and the complainant was advised non weight bearing and continued antibiotics and analgesics. Wound inspection done I the post operative period showed would clean and healthy and hence the complainant was advised discharge on 25/09/2017 with medicines and review after 02/10/2017. On follow up review the 1st OP had examined the complainant and given proper medical advice and instructions as per protocol. On 12/02/2018 X-ray was taken as the complainant had reported pain and the X-ray was taken and the complainant had reported pain and the X-ray showed evidence of delay in fracture healing and implant cut through which could be possibly due to avascular necrosis of femoral head. The complainant was informed about X-ray findings and told that further management could be decided after taking an isotope scan of femoral head. Avascular necrosis can be diagnosed only through an isotope scan and this is the key diagnostic device to decide further management. Isotope scan was not available in the 2nd OP hospital and further treatment procedure could be decided only on the basis of isotope scanning but the complainant did not turn up for further treatment and lost follow up. The complainant consulted the 1st OP 10 days after causing fracture and following some sort of native treatment and naturally it would have imparted difficulty in reduction and affected fracture healing process. The 1st OP had adopted a treatment procedure well accepted to medical science for the management of fracture caused to the complainant with reasonable skill and care. The delay in taking appropriate treatment invariably would have contributed to the outcome of the accepted treatment through fracture reduction and definitely affected the healing process. The statement that the complainant got admitted to the 2nd OP hospital on 19/09/2017 is not correct and hence denied. The statement that the complainant came up for review on all occasions with compliant of discomfort and pain is not correct. Further statement that on 12/02/2018 the 1st OP had found that the operation conducted by him was not successful and diagnosed non union of hip joint is ill motivated and hence denied. Further the case of the complainant that he was orally referred to MIMS hospital, Calicut for expert treatment. The complainant himself abandoned the treatment in the 2nd OP hospital most probably for the reason that the hospital ceased to be an empanelled hospital for ECHS facility with effect from 01/02/2018. The complainant had his previous treatment in the hospital under ECHS scheme and it can be reasonably concluded that he had decided to continue treatment elsewhere having ECHS facility and the said decision was not due to any fault in the treatment on the part of the 1st OP. The complainant was issued a discharge summary which contained all the treatment details necessary for an evaluation with regard to the overall treatment given in the 2nd OP hospital to facilitate further treatment. The fact recorded in the discharge summary that the complainant reported 10 days after the incident is a fact disclosed by the complainant himself when he reported in the 2nd OP hospital. It is contended that the 1st OP gave proper medical advice for isotope scan for deciding further treatment since a condition like avasclular necrosis was suspected on clinical side. The post operative check X-ray taken after reduction of, fracture done by the 1st OP showed satisfactory reduction and later complications like implant failure, delayed fracture healing and non union etc., can happen due to factors beyond the control of the treating doctor. Further, submitted that if the complainant reported back with isotope scan as advised by the 1st OP, further treatment including corrective surgery if necessary could have been done in the 2nd OP hospital itself. The 1st OP is have in qualification of MBBS, MS Orthopaedic with an experience of 26 years as a consultant orthopedic surgeon. There is no negligence or deficiency in service on the part of OP as alleged by the complainant. The complainant is not entitled to get any relief as prayed for in the complaint. Hence, prayed for the dismissal of complaint.
Complainant has filed his proof affidavit and documents. He has been examined as Pw1 and marked the documents as Ext.A1 to A7. Pw1 was subject to cross-examination by OP and marked Ext.B1 case record of OP Hospital. On the side of OPs, OP No.1 filed his chief affidavit and was examined as Dw1. After that the learned counsel of complainant and OP argued the matter. The learned counsel of OP also submitted written argument notes along with judgment of Hon’ble Supreme Court of India and Medical literature for reference.
We have gone through the pleadings of the parties, perused the records brought before us and heard the arguments of the learned counsels for the complainant and OPs and referred Medical literature submitted.
Learned counsel for the complainant has contended that it is a case of medical negligence. The complainant sustained a fracture on his right hip joint due an accident fall on 16/09/2017 and immediately he took initial treatment on the same day. Thereafter he felt some discomfort and acute pain. Hence he was admitted in OP NO.2 hospital on 19/09/2017 and consulted OP No.1 doctor the orthopedic surgeon. OP No.1 diagnosed a fracture on the right hip joint of the complainant and advised an emergent surgery and the surgery was performed on 22/09/2017 by OP No.1. He was discharged on 25/09/2017with an advice to follow up. He visited the OP No.1 on 03/10/2017, 02/11/2017 and 06/12/2017. In all those occasions, informed OP No.1 about his discomfort and pain in the operated part of his limb. Finally on 12/02/2018 the complainant was examined by OPNO.1 and found that the operation conducted by him was not successful and he diagnosed that there was non-union of the hip joint. OP No.1 then suggested for Isotope scan and for further treatment orally referred the patient to MIMS Hospital, Calicut. So he has to go to MIMS Hospital, Calicut. Complainant alleged that the discharge summary issued by OP NO.1 was prepared in a negligent manner. OP No.1 intentionally stated in the discharge card that the injury was caused 10 days back. So he felt difficult to explain his physical condition for further treatment at MIMS Hospital. From the doctors at MIMS Hospital, it was found that OP No.1 had not conducted the operation properly and the implant has to be removed and re-fixation or HIP replacement if necessary. The complainant submits that for getting a second opinion, he approached in Tejasvini hospital, Manglore on 12/02/2018 as an outpatient and diagnosed that “varus collapse and shortening of leg” and advised for the removal of the implant of the previous surgery and re-fix the implant through another surgery. The complainant was admitted on 18/03/2018 and surgery was conducted on 19/03/2018 for removing the old implant and to insert a new one to correct the defect of the right hip joint at Tejasvini Hospital, Manglore. The complainant was discharge on 31/03/2018 with an advice of follow up treatment and the final review on 18/12/2018 the doctors of Tejasvini Hospital Manglore confirmed that the hip joint was united.
Complainant has stated that after the treatment and 2nd surgery from Tejasvini Hospital, he became normal and after 113 days joined his duties. He suffered mental, physical and financial problems due to the negligent act of the OPs.
On the other hand, it was argued on behalf of OP No.1 that there is no deficiency in service and negligence on the part of OPs and the complaint may be dismissed. It is submitted that after fully conversant with the nature of fracture sustained by the complainant and its treatment by way of closed reduction and fixation of fracture as well as chances of complications like infection, mal union, non union or delay in fracture healing and also chance for difficulty in fracture reduction due to delay in seeking treatment were explained to the complainant and his bystanders, the complainant and his bystanders voluntarily agreed for surgical treatment for fracture fixation and signed written informed consent.
Complainant has placed the document s Ext.A1, A2 series, A3 Discharge summary, out patient records (3 in numbers), Examination report (3 in numbers) issue from OP No.2 hospital pertaining to the treatment given by OP NO.1 to complainant and Ext.A5 Discharge summary issued by Tejasvini hospital, from where the 2nd surgery was done on the complainant. Ext.A6 and 7 are the X rays (8 in numbers),. In Ext.A5 it is recorded that diagnosis operated Right Intertrochantric fracture with implant in SITU with Virus collapse. H/o complaints: PT operated for right intertrochantric fracture n September 2017 C/o Shortening and inability to walk without support. No. H/o Traunsi Movemnts – painful and restricted. Apparent and true shortening of 1Cm present. It is further observed that no distal Neurovascular deficits. Operative Notes. Implant removed +Valgus osteotomy with DHS fixation done on 21/03/2018. The pertinent question to be decided in the present case, is whether implant failure and non-union of trochantric fracture of right hip amounts to medical negligence on the part of OPs 1 and2. The complainant has relied up on the documents submitted by him including the chief-affidavit, that OP2 has prepared the discharge summary Ext.A1 in a negligent manner and nothing was revealed by reading those document about the examination findings, investigation findings, diagnose and final diagnose at the time of discharge, treatment conducted by the OPOs and condition of the patient at the time of discharge. Moreover OPs intentionally stated in Ext.A1 that the injury was caused 10 days back. Complainant further alleged that the treatment record Ext.B1 was manipulated by OPs and submitted. According to complainant non-union of right cervicotrochenteric with implant failure due to, surgery conducted by the 1st OP in a highly negligent manner, which was realized by the complainant from the doctors of the MIMS Hospital to which he had to go for corrective treatment.
To rebut this allegation and evidence, OPs have placed affidavit, documents (Ext.B1) and the literature. OP No.1 vide his proof affidavit deposed that he explained to the complainant and their bystanders the nature of the fracture, the recommended treatment of closed reduction and fixation of the fracture, and the potential complications such as infection, mal-union, non- union, or delayed healing. They also mentioned the possibility of difficulty in reducing the fracture due to the delay in seeking treatment. After fully understanding the nature of the fracture, the proposed surgical management, and the associated risks and complications, the complainant and their bystanders voluntarily agreed to undergo surgical treatment for fracture fixation. They provided written informed consent for the procedure.
On perusal of Ext.B1 case record, we can reveal that in page 28, the complainant’s friend had given consent for treating the complainant after fully knowing the diagnosis of the nature of fracture happened to the complainant and also the proposed surgical and associated risks and complications. Further, it can be seen that the patient himself had given voluntary consent for the proposed surgery. Thus from Ext.B1 it is realized that prior to the treatment, complainant and his bystanders were fully aware of the nature of the fracture, what surgery has to be given and also its risk factors after the surgery. OP No.1 further placed that the OP1 performed closed reduction and internal fixation of the right hip fracture using a short PFN A2 implant. The procedure was carried out with great care and under sterile precautions. The OP1 successfully achieved a good reduction of the fracture and stabilized it with the PFN A2 implant, following the standard protocol. A post-operative X-ray examination confirmed the satisfactory reduction of the fracture and to continue taking prescribed antibiotics and analgesics for pain management. The wound was clean and healing well. On the follow-up review, the 1st OP examined the complainant and provided appropriate medical advice and instructions according to the established protocol. However, on 12/02/2018, an X-ray findings and advised that further management decisions could be made after conducting an isotope scan of the femoral head. Further submitted that since OP 2 hospital did not have the facility for an isotope scan, further treatment involve removing the implant and proceeding with a total hip replacement, could be determined based on the results of such a scan, the complainant did not appear for further treatment. The implant failure, mal union, delayed union, is expected complication after PFN A2 implant. It is submitted that OP NO.1 is also a qualified orthopedic surgeon having MS Orthopedic with an experience of 26 years as a consultant.
The learned counsel of OP submitted a literature, “orthopaedic and Traumatology surgery and Research”, it is mentioned that Fracture healing with femoral neck shortening by impaction after internal fixation of a femoral neck fracture is associated with AVN. O the 75 included patients, 9 (12%) experienced AVN. Femoral neck fracture; Coxa valga; Femoral neck impaction; Garden I; Avascular nercrosis; Femoral head. About 20% rates of revision for non-union, secondary displacement, or avascular necrosis (AVN) of the femoral head have been reported after internal fixation. Many studies have sought to identify risk factors for complications after internal fixation of femoral neck fractures, which often require revision surgery to perform arthroplasty. Postoperative femoral neck impaction after internal fixation of Garden I fractures was associated with a higher risk of AVN.
From the above, it is clear that the complication of non-union and delayed union are likely to occur and OPNo.1 has opted for one of the standards treatment given in trodiantric fracture of right hip ie closed reduction and interual fixation of fracture right hip with shore PFN A2 implant and the results could not be 100% even as per the literature submitted and the surgery performed was a standard treatment for tronchanteric fractures. From the literature it is realized that in medical science, nonunion of any fracture especially in tronchanteric fracture, is an expected complication and the operating surgeon cannot be blamed for the same. The revision surgery with bone grafting is the standard treatment in such cases of non-union.
Here OP No.1 submitted that he advised the complainant on 12/02/2018 when he came with complaint of pain at the first time, after taking x-ray of the fracture site some for review after taking an isotope scan, which is crucial in determining the appropriate treatment, from outside, the complainant did not appear for the follow up. OP NO.1 claimed that he could have done the corrective treatment to the patient as conducted in Tejasvini Hospital. From the evidence we could see that the complainant does not have a case that the material used by the OP NO.1, for the internal fixation was of low quality or the material used for fixation was broken.
Thus from the above discussion and the principles as well as practice followed by the doctors, it is clear that there was no negligence in performing the operation or opting a particular treatment by OPNo.1 and the delayed union/ non-union of the fracture was one of the complications that is expected to rise and the complications cannot be equated with negligence.
One of the allegations of the complainant is about the overwriting found in the date of admission mentioned in the discharge summary and in Ext.B1, complainant submitted that he was admitted to OP No.2 hospital on 19/09/2017. However, the OP’s contention is that he was admitted on 21/09/2017. Hence OP admitted that there is overwriting in the date of admission on the 1st page of the discharge summary. According to OP he was admitted on 19/09/2017, he should have various documents such as prescriptions and cash bills issued to him on and after 19/09/2017. However, the complainant has not provided any documents with a date prior to 21/09/2017. The Ext.B1 case record is also lacks any entry prior to 21/09/2017.
On perusal of the documentary evidence available before us does not show that except the entry in Ext.B1 and in Ext.A1, there is no other documents, either admission card or X-rays taken on the admission date, has been produced by the complainant for peering his main claim that the 1st OP had given belated treatment to him. Nowhere in the discharge summary of Tejasvini also could seen that he came to OP NO.2 hospital on 19/09/2017 but the treatment given only on 21/09/2017. Hence the contention taken by the OP doctor, that the complainant availed his treatment only after 10 days of happening the tranchateric fracture on his right hip is a reliable contention because the admission date, initial nursing assistance record date, BP chart in Ext.B1, TDR charts etc shows that the starting date is 21/09/2017.
So from the above facts and circumstances of this case, there is nothing on record that it is due to the negligence of OP No.1 the complainant has to undergo operation second time at Tejasvini Hospital. The Judgment submitted by the learned counsel of OP clear that in the judgment of Hon’ble National Commission in Kusum Sharma’s case [2010(3)SCC 480]. It is well known tht, the rare risks and complications for all surgeries. Manju Anil Chawla VS Jivandhara Hospital 2014 2 CPJ (NC)261; 2014 1 CPR(NC) 236. In the case reported in 2013(1) CPR (NC) 137 (Mehernosh Kersi v Venkitarama Nursing Home) the complainant suffered with trochanteric fracture. The National Commission held that the recurrence of fracture is not due to the negligence of Doctor. Avascular Necrosis has been discussed in 2008(1) CPR(NC) 15 (Mohan RAO V Miot Hospital) and held that it can be caused due to either primary or idiopathic(sudden development without any traceable causes.) The Hon’ble Commission further held the re-surgery is not evidence of any negligence on the part of the 2nd OP. 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. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. (HarishKumar Khurana 2021 10 SCC 291) Followed in Chanda Rani v Methusethupati 2022 0 Sup(SC) 335. In Jacob Mathew case [(2005) 6 SCC 1: 2005 SCC (cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said t be evidence by which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. CP Sreekumar (DR), MS(Ortho) v S Ramanujam, (2009) 7 SCC 130. Medical negligence BURDEN is on the claimant to prove breach of duty 2009( 7 SCC 130. Medical negligence – Burdent is on the claimant to prove breach of duty. 2009(0) Supreme (SC) 1153, 2009(4) Supreme (SC) 573. Even merit, the “NON UNION OF FRACTURE” is an accepted complication following fracture surgery. Satender Kumar VS Indraprastha Apollo Hospital 2016 4 CPR(NC) 716.
Considering the facts and circumstances of the case and from the available records, complainant failed to prove the medical negligence happened on the side of opposite parties
In the result, complaint fails and hence the same is dismissed. No order as to cost.
Exts.
A1-Discharge summary issued by OP No.2
A2(series) –Out patient records (3 in numbers)
A3-Examination report by OP No.1 ( 3 in numbers)
A4-OP ticket issued by Mims hospital (photocopy) Objection by OP’s counsel
A5-Discharge summary issued by Tejasvini hospital
A6-X-ray (3 in numbers)
A7-X-ray (5 in numbers)
B1- Case sheet of OP
Pw1- Complainant
Dw1-OP1
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
