SMT. RAVI SUSHA  : PRESIDENT

         Complainant filed this complaint  for getting compensation of Rs.4708415/- alleging medical negligent on the part of opposite parties.

   Briefly stated, the facts of the case are that on 5/1/2020 the complainant had  fall in the bathroom for consultation he had gone to 1^st OP’s residence, 1^st OP advised X-ray  examination, which showed the complainant had sustained  fracture to the left humerus bone and  advised  him to be  admitted in 3^rd OP hospital and recommended  that an operation is required to be done to rectify the damage occurred to the left humerus bone.  The 1^st OP further advised that through a key hole surgery the interlocking  of the  left humerus bone  at the fracture  shall be performed and convinced the complainant to undergo  the key hole  surgery  immediately  at 3^rd OP hospital.  Weighing all the pros and cons  as explained by  the 1^st OP, the complainant  got admitted  3^rd OP hospital and the key hole surgery was  performed  by OPs 1&2.  The complainant submits that  he was discharged   from the 3^rd OP hospital  on 9/1/2020 after paying a sum of Rs.56,760/- towards the cost of operation and consultation charges.   Further the 1^st OP advised  him to come for check up after one week.  At the time of review, the complainant had mentioned to the 1^st OP that he was  feeling weakness in his  left hand fingers and wrist after the key hole procedure, but the 1^st  OP  gave a deaf ear to the concerns of the complainant and completely ignore the patient’s complaint and only suggested for a physiotherapy to be continued.  As per the suggestion of  Physiatrist,the complainant underwent nerve conduction  study on 15/1/2020 at Indira Gandhi Co-op Hospital Thalassery suggested that  plaintiff left hand had a Radial Axonal Neuropathy and Bilateral carpal tunnel syndrome, and informed to 1^st OP, he only advised to continue the physiotherapy and ignored the test result shown.   After that as there was no improvement, complainant consulted with Dr.A.J.Guild, at MBR Medical Trust, Hospital,Kochi and diagnosed  that complainant has  Radial Nerve Palsy to  correct which requires a Radial nerve Exploration surgery  which itself is a major surgery. Complainant further want of a second opinion  to approached Neurosurgeon at First  Neuro Brain and Spine Super specialty hospital at Mangalore on 28/1/2020.  They  have also given the same opinion , after studying the  Ultra sound scanning taken at Kasturba Medical college, Mangalore as given by Dr.A.J Guild that it requires an operation at the earliest.  With all the suffering  and pain the complainant further visited the Dept. of Plastic surgery at MBR Hospital, Cochin, after a detailed  diagnosis the doctors confirmed immediate surgery.  For the second operation the complainant had to incur  an additional Rs.1,87,514.  The doctors at the MBR Hospital further informed the complainant that his damage is permanent and the radial nerve cannot be fully corrected and hence the damage will be there  permanently and the disability sustained will be for life long. Complainant  submits that the 1^st OP did not even bother to look at the 2^nd opinion taken from various other medical experts nor was looking at the physical condition or the complaints of the complainant and just arrogantly advised for continuing  physiotherapy only.  The complainant issued lawyer notice to all ops.  They received   notice and  denied the  allegations of the complaint . For the deficiency in service and medical negligence  on the part of OPs the complainant caused  permanent disability . Hence complainant filed this complaint for getting compensation from 1^st OP for the mental agony and financial loss due to resign from his job etc.

     1^st OP contested the complaint, saying that on 5/1/2020 the complainant got admitted to the 3^rd OP hospital under the 2^nd OP.  After getting written informed consent, the 1^st OP had conducted  closed interlocking nailing of left humerus bone under C-arm guidance with  all care and caution as requested by the complainant.  The 2^nd OP had assisted  the procedure.  On the 2^nd post operative day the patient was noted to have  difficulty in extending fingers partially and involvement of radial nerve was identified which is a reported problem associated with fractures of mid shaft of humerus .  He was given a cock up splint  and referred for physiotherapy consultation and explained regarding exercise pattern to improve  finger movements.  He was discharged on 9/1/2020 with an advice to continue physiotherapy exercises at home and to wear cock up splint and for review on 15/1/2020 for suture removal and for physiotherapy evaluation.  It becomes obvious that the first and second OPs exercised reasonable care and caution in the treatment of the complainant and followed a practice acceptable to medical profession.  On review consultation suture removal was done and on clinical examination radial nerve was assessed and the condition was diagnosed as due to neuropraxia and as per accepted treatment protocol he was advised physiotherapy as part of conservative management as neuropraxia usually improves on its own  by three to six weeks conservative management.  In the case of  complainant radial nerve neuropathy diagnosed on nerve conduction study was not caused due to any act or omission on the part of OPs 1&2 and there was no failure on their part in the management of the  said condition.  The fracture of mid shaft of humerus bone  itself  can cause nerve involvement likely to be manifested after surgery for which gentle home exercise programme/ physiotherapy is the initial accepted line of management and surgical intervention is necessary only if there is no improvement with  conservative management. The complainant underwent radial nerve exploration and reconstruction for radial nerve contusion and it cannot be termed as due to any fault in interlocking nailing done by the 1^st  OP. 1^st OP further submits that the damage of  radial  nerve will be there permanently and disability will be lifelong is not sustainable. There was no negligence  or breach of duty on the part of  OPs  and no damage has been caused to the complainant  by the treatment of the OPs.  The 1^st OP is having  qualification of MBBS, D’Ortho with experience of 17 years  as a consultant orthopedic surgeon, and the 2^nd OP is having qualification of MBBS, with experience of 47 years  as a General physician. Hence the OPs prayed for the dismissal of this  complaint.

   At the evidence stage, complainant has filed his proof affidavit and documents.  Examined as PW1 and marked Exts.A1 to A68.  On the side of OPs two witnesses including 1^st OP were examined, marked Ext.B1.  The 2^nd  witness on the side of OP was Dr.Mahesh.R.P, Ortho Surgeon, District Hospital Kannur.  All witness were subjected to cross-examination for the other  side.

    After that the learned counsels of complainant and 1^st OP made oral arguments.  The learned counsel of OP filed written argument note judgments of Appellate commission and also Medical Literature.

   At the time of argument, the learned counsel of complainant stated that  as the condition of the left hand of complainant was not improved after the  key hole surgery done by 1^st OP at  3^rd OP hospital he  underwent  a nerve  conduction study and found that his left hand had a Radial Axoual Neuropathy and Bilateral carpal Tunnel syndrome.  So he again went to  1^st OP and  the OP advised to continue physiotherapy.  After that as there was no improvement, he consulted Dr.A.J.Guild , at MBR Medical Trust, Hospital, Kochi and diagnosed Radial Nerve Palsy and conducted 2^nd  surgery nerve graft surgery.  Complainant alleged that the 2^nd surgery  ie, Nerve graft surgery was done due to the damage caused to the Radial nerve due to the screw that was fixed on the humerus bone during  key hole surgery by 1^st OP.  Hence complainant filed this complaint for getting compensation from 1^st OP for the mental agony and financial loss due to resign from his job etc.

  The learned counsel for the OP, however, stated that there had been no negligence on the part of 1^st OP in performing surgery  upon the complainant.  According to 1^st Op,12% of humorous fracture there chance for radial nerve palsy.   Further submit that radial nerve palsy is a common complication of humorus fracture.

   Here the  question to be decided is (1) whether Radial nerve injury was happened on account of defective surgery done by 1^st OP  and  1^st OP was negligent in treating him?

(2) Whether due to radial nerve injury, he became permanent disabled and due to that he  constrained to resign from his job?

   The learned counsel of OP argued that the burden of proof lie on the complainant to prove the above said allegations.

   We have examined the material on record and considered the argument made by the learned counsels of the parties.

      The complainant’s allegation  is Radial nerve injury happened to his left hand due to the screw that was fixed where the radial nerve close to left humerous bone of the complainant by an interlocking of the left humerus bone  during the key hole surgery  by the 1^st OP at 3^rd OP hospital.  Complainant alleged that though the impression in the nerve conduction  study on 15/1/2020 at Indira Gandhi Co-op Hospital Thalassery suggested that  plaintiff left hand had a Radial Axonal Neuropathy and Bilateral carpal tunnel syndrome, and informed to 1^st OP, he only advised to continue the physiotherapy and ignored the test result shown.  Through Ext.A10 ENMG Report dtd.15/1/2020 complainant proved the said fact.  Ext.A22 is the prescription issued by 2^nd OP on 14/1/2020, which means the complainant had approached to 3^rd OP hospital for review and consulted 2^nd OP.  It also reveals that he had gone for review due to  the discomfort and serious complaint to the operation  and might have informed to 2^nd OP about the complaint and discomfort at the  operation site.  In Ext.A22, we can see that no prove diagnosis was advised to the patient to find out the reason for the present complaint of pain etc.  Not even suggested to  take X-ray. Simply given Neugaba Medicines for pain , and some other medicines.  Ext.A10 reveals that the complainant has  gone to the Indira Gandhi Co-op Hospital on the very next day ie on 15/1/2020 and  conducted nerve conduction study, for going to the said  hospital to  find out the reason, we cannot , blame the patient.  Ext.A28(b) shows that he again return back to 1^st OP, with the  result  for getting better treatment from 1^st OP, without availing treatment from any other orthopedic doctors.  On  perusal of Ext.A28(b), we can see that 1^st OP did not mention about the report of Ext.A10 in Ext.A28(b) prescription.  Only suggested physiotherapy and given some medicines.  OP’s explanation is that during the  review, suture removal was performed and clinical examination revealed  radial nerve neuro praxia  and advised the accepted treatment physiotherapy as part of conservative management.  Further submitted that further evaluation  with nerve  conduction study would be considered if  conservative management fails.

      In this case the nerve conduction study was done on the same day and found Radial axonal neuropathy which  shows that on the review day itself the complainant had such a complaint.  Moreover the  physiotherapy and cock up splint was started on 6/1/2020 itself.  OPs submitted that if there was no improvement in applying cock up splint and doing physiotherapy , nerve conduction study has to be done.  In such a situation , even after complaining  about the complaint of feeling weakness in the left hand fingers and wrist of the complainant on the review day, and after seeing  Ext.A10 report, no other treatment was advised by the OPs 1&2.  Further from the facts and  also from the medical records, it is evident that on continuing physiotherapy till 18/1/2020, the complainant contacted Dr.A.J.Guild at MBR Medical Trust Hospital at Kochi on 18/1/2020, then he diagnosed that the  complainant had Radial nerve palsy and  to correct which  requires a Radial nerve exploration surgery which itself is a major surgery.  Complainant again  went to first  Neuro Brain and Spine Super specialty hospital at Mangalore on 28/1/2020.  According to complainant, after Ultra sound scanning taken at Kasturba Medical college, Mangalore as given by Dr.A.J Guild.  It is seen that complainant again visited 1^st OP  on 27/1/2020 and 29/1/2020 and explained to him  the  present  condition  and reports and opinion of other doctors.  Complainant submits that then  also 1^st  OP opinioned  to continue physiotherapy.

   From the action of complainant to approach 1^st OP again and again, without availing treatment from any others, even after realizing the condition of his  hand, seems  he believe 1^st OP that much.  But from the medical records it is revealed that  there was no improvement happened to  the hand of complainant till 14/2/2020. In Ext.X1 case record from  Specialists Hospital Kochi, final diagnosis on the admission day  at the said hospital on 13/2/2020, was that  left radial nerve palsy, nerve was found partially damage, 3 cm damaged segment  reconstructed.  2^nd operation was done 14/2/2020 conducted by Dr.A.J.Guild and discharged on 22/2/2020.  In Ext.X1 series, it is recorded that in page 13.  At the admission time “ the patient had  gross stiffness of shoulder, wrist and hand joints with oedema”.  From the said facts itself it is revealed that there was no improvement to the patient  to the left hand, after the surgery done by 1^st OP at 3^rd OP’s hospital.

      The learned counsel of OPs submitted that radial  nerve injuries are  usually treated with conservative modalities, such as physical  therapy and splinting, and radial nerve palsy is a common complication of humorous  fracture.  Further the negligent action of  OP could not be  proved by the complainant through expert evidence.  The learned counsel of OP submitted a number of decisions of Hon’ble  appellate commissions  that the burden  is on the claimant to prove breach o duty.  Further submitted  medical literature that radial nerve injury can be cured 100%.  In the medical literature, it is  observed that radial nerve palsy do naturally occur following  surgical therapy.  Further observed that the  two complications  often seen  are injuries to the  radial nerve and non union of the  fracture.  Further revealed that injuries to the radial nerve are  fairly common in  a mid-shaft break  because this nerve can be injured at the time of  the fracture or during treatment.  It is also  observed that most radial nerve injuries typically improve with time, but the health care provide should follow up  with the patient  in case further treatment  is needed.

   In 2019 (2)CPJ(NC) 330 produced by the learned counsel of 1^st OP. states that “ The radial nerve is the nerve most frequently injured with fractures of the  humeral shaft and usually the radial nerve injury is a neura praxia, with recovery rates of 100%.  In another judgment 2007 4 CPJ (NC) 64, the Hon’ble National commission held that recovery of nerve can  take about 4 to 6 months  for re-generating.  In the said case nerve was bruised  because of accident.

   In the instant case, there was only  mid-shaft humerus fracture.  At the  admission time  ie, on 5/1/2020, OPs 1&2 had not mentioned about damage to the nerve in the  prescription  or in the case records.  Evidence of nerve palsy came to  know through Ext.A10 after nerve conduction study on15/1/2020, which was instantly informed 1^st OP by the complainant.  Then 1^st OP had  advised only to continue physiotherapy and cock up splinting.  As per the advise of  OPs 1&2, the complainant continued physiotherapy till 13/22020.  But there was no improvement.  The expert doctor DW2 deposed that “ if there is any radial nerve injury is suspected, cock up splint is used and it is one of the treatment for radial nerve injury.  Further deposed  “ if neuropraxia is not cured, a nerve  conduction study can be done.  Can the radial nerve injury caused  by a fall? Yes, fall trauma etc.

   In this case, after applying cock up splint and started physiotherapy  from 6/1/2020 till 15/1/2020, radial nerve injury was found by  doing nerve conduction study at another hospital.  DW2 deposed  that if radial nerve injury is suspected, cock up splint and physiotherapy  can be advised.  Here even after knowing  about radial nerve injury through Ext.A10 report, 1^st OP advised to  continue the prior treatment.  Till 10/2/2020 complainant continued the said treatment as per the advise of OPs 1&2. Ext.X1 shows that at the admission time at the  Specialists hospital Kochi, the condition of  nerve was, radial nerve palsy.

   During cross-examination DW2, deposed that “if the nature of fracture in complicated through X-ray, that will be noted  in the  case record.  Further  if there is pre-existing  radial nerve palsy that will be noted in the  case records.  Further stated that in  such case  EMG test will be suggested, that will be noted in the case records.  If there is suspected radial nerve palsy then cock up  splint  will be given.

   Here in the instant case, on 15/1/2020 Ext.A10 reveals that there is radial nerve palsy.  Even on  the subsequent review dates also  complainant reported the complaint of radial nerve palsy. Then OP has not given any advise to do  EMG test to find out the gravity of nerve palsy for  giving  further treatment or for doing surgery.

   This is a case  where the doctrine  of  Res-Ipsa-Loquitur is applicable considering  giving  of  continuous same treatment (physiotherapy and splinting) even after knowing  the complaint of radial nerve injury.  The medical records itself shows the fact that 1^st OP was negligent in giving proper treatment to the complainant by advising EMG test to ascertain the gravity of nerve palsy and to do nerve grafting or necessary treatment .  Hence our opinion that no expert opinion from the side of  complainant is not necessary.

   Here with regard to other allegations of the complainant about  reason for the loss of job due to disability of the hand and percentage of disability of his left hand etc  there is no evidence.  DW2 and medical literature submitted by OPs, reveals that, radial nerve palsy can be cured 100%  if proper treatment were given.  In this case, complainant could  obtain treatment  from other hospital than OP hospital by other doctors.  So without any disability certificate, we cannot presume that complaint is suffering disability on his left hand due to the fracture happened.  Hence our opinion is that complainant  is entitled to get treatment expenses for the treatment availed at Specialists Hospital, Kochi because of the negligence on the  part of OPs 1&2, in giving  proper treatment after seeing  Ext.A10 report, even though it is not proved that nerve palsy was happened due to the  negligence on the part of OPs 1&2 in conducting  surgery in a  negligent  way at  3^rd OP hospital.  Complainant is entitled to get compensation  also for the  mental and physical agony and for financial loss.

   In the result, complaint is allowed in part, the  opposite parties 1 to 3 are directed to pay Rs.1,87,514/- , the 2^nd surgery expense incurred to the complainant.  Opposite parties 1 to 3 are further directed to pay Rs.2,00,000/- towards compensation and Rs.25,000/- towards  cost of the proceedings of the case.  Opposite parties 1 to 3 are directed to comply the order jointly and severally  within one month from the  date of receipt of this order.  Failing which Rs.187514/-+ Rs.2,00,000/- carries interest @7% per annum from the  date of order till realization.  Complainant can execute the order as per the provision in Consumer Protection Act 2019.

Exts:

A1-Copy of lawyer notice

A2 to A4-Acknowledgment card

A5 to A7- Reply letter of OPs

A8-Copy of discharge summary  dtd.9/1/20

A9-copy of discharge bill from 3^rd OP

A10-copy of ENMG report

A11- Radio Diagnosis and imaging report from KMC Mangalore

A12- Copy of letter from Dr.Rakshit .C to Dr,Guild

A13- copy of prescription

A14-copy of inpatient bill summary from MBR Medical Trust Hospital

A15-copy of medical  certificate issued by Dr.Guild

A16- Copy of Discharge card  from MBR   Medical trust hospital

A17-copy of certificate issued by MBR  Medical trust hospital

A18-Laboratory investigation report

A19- Discharge summary  issued by 3^rd OP

A20&A21-letterfrom specialists Hospital

A22-3^rd OP hospital prescription

A23 to A25- X-ray report issued by  3^rd OP

A26-Report by  superintendent  Dist. Hospital Kannur

A27-HDFC Bank statement

A28(series) 1^st OP prescription(3 in Nos.)

A29-Specialists Hospital prescription

A30- IP deposit(Specialists Hospital)

A31-New Registration( Specialists Hospital)

A32,A33,A35,A38,A30,A42,A43,A45,A46,A48-Revisit( Specialists Hospital)

A34,A36,A37,A39,A41,A44,A47- cash bill

A49- Sumi medicals

A50- Bill of supply

A51- OP deposit

A52&A53-Revisit(2 in Nos)

A54(series)- Physiotherapy charges (77 in Nos.)

A55- cash bill (series 31 Nos)

A56(series)-Physiotherapy and Rehabilitation cash bill(16 in Nos)

A57-cash bill(27 in Nos) Specialists  Hospital

A58- ThalaSssery  Co-op  hospital General bill

A59-cash bill (31 in Nos)

A60- revisit

A61- Thalassery  Co-op  hospital General bill(10 in Nos)

A62- Bill from Aswas Physiotherapy and Neuro Rehabilitation( 34 in Nos)

A63-General Hospital Thalassery OP record( 2 in Nos)

A64- Revisit

A65- Train Ticket(2 in Nos)

A66- Eagle hunter Sol Apartment letter

A67- letter of relieving

A68- photograph.

B1-case sheet

Ext.X1-(series)-Case record from Specialists Hospital

PW1-Radhakrishnan .C- Complainant

DW1- Rajeev.R- 1^st OP

DW2-Mahesh.R.P-witness of OP

Sd/                                                   Sd/                                                         Sd/

PRESIDENT                             MEMBER                                               MEMBER

Ravi Susha                               Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                       /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR