SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint for getting an order directing opposite parties 1 and 2 to pay a compensation of Rs.3,00,000/- for mental agony due to deficiency in service and medical negligence on the part of opposite parties and cost of the proceedings.
Case of the complainant is that the complainant has approached OP 1 and consulted for a complaint of pain and swelling of left thigh. After consultation of OP No.1, he advised the complainant for surgery and implantation for cure and complete recovery. Accordingly the complainant admitted at OP No.2’s hospital on 13/08/2018 with hospital No.18122509 and surgery was done by OP No.1 on complainant’s left femur and steel road was implanted and complainant was an inpatient at Pariyarm Medical college hospital and discharged the complainant with a plaster cast on 29/08/2018. OP No.1 advised the complainant for partial weight bearing mobilization after 3 months. Thereafter OP No.1 advised the complainant for full weight bearing mobilization only after 6 months. After that severe pain was developed and the complainant approached OP No.1 at above hospital for further consultation and advise. The OP1 examined the complainant and after medical investigation informed the complainant that, there was implant failure and implanted plate is broken and also has caused further fracture of bone due to the implant failure. He advised the complainant that one more surgery is required to replace the broken implant and compelled to get admitted at the above hospital on 18/02/2019 and surgery was done on 19/02/2019 by OP1 and discharged on 27/02/2019. The complainant alleged that he had to undergo the 2nd surgery after 6 months was solely due to the serious medical negligence of OP 1 and 2 and also the implant plate is broken the use of substandard implant at the time of surgery. Now the complainant is under the treatment of Dr. Nithin Koshy, Orthopedic surgeon, Taluk Head Quarters Hospital, Taliparamba. The complainant have caused much mental and physical hardship, pain and suffering and also huge financial loss because of the deficiency of service and grave medical negligence committed by the OP No.1 and 2 towards the complainant. Hence the complaint.
OPs 1 and 2 denied the allegations made in the complaint. OPs 1 and 2 filed separate written version. OP1 contended that the complainant came to OP 2’s hospital on 13/08/2018 with complaint of pain, swelling and deformity of left thigh and knee following a slip and fall. He had slipped and fell down on 12/08/2018 and injured his left femur. He went to THQ hospital, Taliparamba on 13/08/2018 and was seen by Orhotpaedic surgeon Dr. Nithin Koshy, X ray’s were taken and diagnosed to have sustained closed comminuted fracture of distal 3rd of femur (LT) and was referred to Medical College, Pariyarm for open reduction and internal fixation. Patient came to Ortho OP on 13/08/2018 and was seen by duty Orthopaedic surgeon Dr. Anoop Mattoom, he advised repeat X-ray of femur (LT) and knee (LT) and diagnosed this fracture as Supra condylar Fracture Left Femur extending from lower 3rd femur and with intra articular extension into knee joint without any Neurological deficit. The nature of fracture evident from X-ray and CT and the need for surgical fixation were explained to the complainant and his bystanders. In comminuted displaced intra articular fracture, surgical fixation is the medically accepted modality of treatments to prevent the chance of non-union and mal union and to get 100% alignment of the intra articular fragments. The patient was posted for surgery on 16/08/2018. After fully conversant with the risk factors involved in surgical management of the fracture such as delayed union, knee stiffness, infection at operated site, limb shortening, mal union, non union, chance of arthritis of knee joint and implant failure leading to refracture etc., the complainant voluntarily signed the written informed consent to undergo surgery under care and treatment of the Assistant professor of surgery on duty. After necessary pre-operative investigations and anesthetic check up the complainant was taken up for surgery. Under all care and aseptic precautions the duty orthopaedic surgeon had conducted open reduction and internal fixation of fracture. Post operative check X-ray taken on 17/08/2018 showed perfect alignment of articular surface, good anatomical reduction of fracture and perfect implant placement. Suture removed and it was found that the wound healed on 12th postoperative day. After suture removal an above knee plaster of paris cast was given for 3 months immobilization, an additional external stabilization of the fracture in view of the comminuation at the fracture site. The patient was symptomatically better and was discharged on 29/08/2018 with an advice for non weight bearing and of review after 6 weeks. During post operative review the complainant consulted the same duty orthopaedic surgeon who had conducted surgery and check X-rays taken during OP visits showed that the fracture was in the process of good union. The complainant reported to the OPD on 18/02/2019 with complaint of pain and swelling the lower third of left thigh while walking. The first OP had seen the patient and X-ray examination showed breakage of the plate at its middle, a spiritual fracture starting adjacent to the sit e of plate failure and the fracture line moving downwards and medially towards the medial cortex. On AP view of X-ray the fracture line stops short of this cortex by about 1 cm. In the lateral view of X-ray there was no breaking cortex anteriorly and posteriorly suggestive of the fact that the present fracture was an incomplete one. A comparative study of X-rays taken on 08/02/2019 and on 18/02/2019 revealed the fracture had united but not fully consolidated. Hence it becomes obvious that the cause of the implant failure was not because of non union of fracture and consequent increased stress on implant but pointing to the chance of a twisting injury on the limb that led to implant failure causing incomplete re-fracture. The complaint was admitted on 18/02/2019 and after getting detailed written consent, the broken implant was removed and the re-fixation was done with supra condylar nail on 19/02/2019. Detailed evaluation of the X-ray further showed that the articular surface and metaphyseal bone had united well and medial and lateral cortex well united. As per lateral view X-ray, a well united anterior and posterior cortex was also confirmed. The X-ray findings are suggestive of the fact that the fracture had well united and was in the process of consolidation and implant failure causing incomplete re-fracture solely due to factors beyond the control of the orthopaedic surgeon. OP further submitted that implant failure and an incomplete spiral fracture could have occurred most probably due to a twisting force on the limb rather a than a non union leading to increased stress on the implant and consequent failure. He came for review on 04/03/2019 and on that date sutures were removed as the wound healed well. OP1 stated that regarding the allegations of quality of implant the 1st OP submits that in the 2nd OP’s hospital the department of Ortghopaedics/ Orthopaedic surgeon has no role in the purchase of implants as per the practice followed in the hospital. The surgery is done with implant supplied from the hospital pharmacy as per requirement list given from the department. The implant with standard certification and specification and implant failure was not caused due to inferior quality of the implant. Implant failure is a medically accepted complication induced by factors beyond the control of the orhopaedic surgeon and in the case of the complainant proper care and caution was exercised in the fracture fixation and implant failure was not cause due to any act or omission on the part of the1st OP. The patient was attended by the duty orthopaedic surgeon and he got admitted as per advice of the said doctor which is evident from the treatment record sand duty register in the causality kept in the hospital. It is also well evident from the operation records that surgery was not done by the 1st OP and post operative consultations were also done by the concerned duty orthopaedic surgeon who had attended and operated the patient. The said doctor had done the surgical procedure of open reduction and minimal invasive fixation of fracture with due skill and care which is evident by the operation records and post operative x-rays. It is submitted that the surgery for fracture fixation was not done by the 1st OP and he had attended the patient only when he reported with implant failure and no negligence can be attributed upon the 1st OP for implant failure. The implant used for fracture fixation of the complainant was an ISO certified titanium distal locking plate and screws manufactured by Hardik International Rajkot India Ltd., and the implant supplied by this company has been used in the Orthoipaedic Department in the hospital for the past 12 years. So it is humbly prayed that this Hon’ble commission may be pleased to dismiss the complaint with cost.
OP 2 has stated that Chandran slipped and fell down on 12/08/2018 and injured his left femur. He went to THQ hospital, Taliparamba on 13/08/2018 and was seen by Orhotpaedic surgeon Dr. Nithin Koshy, X ray’s were taken and diagnosed to have sustained closed comminuted fracture of distal 3rd of femur (LT) and was referred to Medical College, Pariyarm for open reduction and internal fixation. Patient came to Ortho OP on 13/08/2018 and was seen by duty Orthopaedic surgeon Dr. Anoop Mattoom (Assistant Professor and final year post graduate student Dr. Sandeep Mohan. He advised repeat X-ray of femur (LT) and knee (LT) and diagnosed this fracture as Supra condylar Fracture Left Femur extending from lower 3rd femur and with intra articular extension into knee joint without any Neurological deficit. After admission, for further evaluation of the fracture and to decide the mode of treatment, CT scan was taken on 14/08/2018 and final diagnosis was reached as closed fracture of distal 3rd femur (Left), comminuted and with intra articular extension into knee joint with displacement of few fragments. It was decide to do surgical fixation. The patient was posted for surgery on 16/08/2018 by Dr.Anoop Mattom as per the Ortho OT list which was signed by him and sent to operation theatre supervisor. The procedure was done on 16/08/2018 by Dr. Anoop Mattom. The patient was discharged on 27/02/2019 and advised suture removal on 04/03/2019. He came for follow up on 04/03/2019, when suture removed and it was found that the wound healed. Even though, he was advised regular follow up in OP an repeat serial X-rays he never came to Ortho Department in this institution but did the follow up at the Taluk Hospital, Taliparamba where X-rays were taken on 18/04/2019, 19/06/2019, 28/08/2019 and 26/09/20119 by Dr. Nitin Koshy, Orthopaedic Surgeon. All the X-rays were send to Dr. Sunil via Whatsapp by Dr.Nitin Koshy when it was taken and the patient was further managed as per his advice. The last X-ray taken on 26/09/2019 shows that the fracture has well united and consolidated. Hence, prayed for the dismissal of this complaint.
Complainant and OPs adduced evidence. Complainant has filed his chief affidavit and documents. He was examined as Pw1 and marked documents as Ext.A1 to A8. The Medical Board certificate of complainant is marked as Ext.X1. On the side of OPs, OP No.1 has filed his proof affidavit and case sheet of OP2 hospital. He was examined as Dw1 and the case record is marked as Ext.B1, Ext.B1(a) and B1 (b). One more witness Dr. Binod Varghese, consultant Orthopeadic surgeon at Koyili Hospital, having experience of 23 years in the relevant field was examined as Expert doctor, from the side of OPs. Operation Register from OP2 hospital during the period of the 1st surgery to the complainant is produced and marked as Ext.B2.
After that learned counsels of complainant and OPs filed their written argument notes. The Learned counsel of OPs made oral submission and also submitted judgment of Hon’ble National Commission Delhi and Hon’ble State commission, Thiruvananthapuram.
We have heard learned counsel for the OP. We have perused the relevant medical records available as well as Judgment of appellate commissions and submission of both learned counsel of parties. The fact that he complainant sustained fracture in left thigh and knee due to slip and fall on 12/08/2018 is not in dispute. It is an admitted fact that after sustaining injury, the complainant went t Taluk Head quarters, Hospital, Taliparamba and consulted the orthopaedic Surgeon on 13/08/2018 and X-ray was taken and from there he was referred to Pariyaram Medical College (OP2) along with his X-ray taken from THQ on 13/08/2018. It also an admitted fact that in the second OP’s hospital, he was advised repeat X-ray of left femur and knee and also CT scan on 14/08/2018. Further after evaluation, open reduction and internal fixation of fracture was done. It is also an admitted fact that post operative check X-ray was taken and showed perfect implant placement. It is also a fact that on 27/05/2019, ie after 8 months from 1st surgery a 2nd surgery was done at the same fracture site of the complainant.
Allegation of the complainant as per the complaint is that he had to undergo the 2nd surgery within 6 months was solely due to the serious Medical negligence of OPs 1 and 2 and also the implant plate was broken due to the usage of substandard implant as the time of the surgery.
On the other hand OPs contentions are that in the 2nd OP hospital, on 13/08/2018, the complainant was seen by the duty orthopaedic surgeon and he advised repeat X-ray of left femur and knee and diagnosed comminuted supra condylar fracture of left femur extending from lower third femur and with intra-articular extension into knee joint without any neurological deficit. He was admitted and on the next day CT scan was also taken. The final diagnosis was, closed of distal third femur comminuted with intra articular extension into knee joint with displacement of few fragments. In comminuted displaced intra articular fracture, surgical fixation is the medically accepted modality of treatments to prevent the chance of non-union and mal union and to get 100% alignment of the intra articular fragments. Surgical fixation can also prevent the chance of shortening because of the fracture and this is the best method in preventing the chance of knee stiffness and future joint arthritis as well. All these facts related to the modality of treatment and advantages of surgical fixation as well as the risk and complications involved in the procedure were explained to the complainant and his bystanders and with their consent surgery was posted to 16/08/2018. Under all care and aseptic precautions the duty orthopedic surgeon had conducted open reduction and internal fixation of fracture. Post operative check X-ray taken on 17/08/2018 showed perfect alignment of articular surface, good anatomical reduction of fracture and perfect implant placement.
The learned counsel of OP submitted that under 2(6)(iii) under Consumer Protection Act a complaint means any written allegations aimed at obtaining relief as provided by the Act. This includes any claims that the service hired or availed of, or agreed to be hired or availed of, resulted in a deficiency. The definition of deficiency can be found in section 2(11) of Consumer Protection Act. According to this definition, any act of negligence, omission, or commission by a person that results in loss or injury to the consumer constitutes a deficiency in service. From the above definition, it is clear that a complaint can be filed against the person from whom the service was availed by the complainant. In this case, the complainant specifically alleged that they were operated on and treated for the 1st and 2nd time by the OP No.1. Therefore, the OP No.1 is liable to pay compensation. The OP No.1 contended that he did not treated the complainant when the complainant was admitted on 13/08/2018 for the 1st time. The assistant professor of surgery, Dr. Anoop Mattom, performed the initial operation and treatment. While it is true that the complainant sought the services of the OP No.1 for the 2nd time, and the OP1 diagnosed a fracture of the plate at its middle, a spiral fracture starting adjacent to the site of the plate failure, and the fracture line moving downwards and medically towards the medical cortex. The 2nd surgery was performed by OPNo.1 using a supra condylar nail, and the complainant had no complaints about the 2nd surgery.
Ext.A3 to A5 are the outpatient record of the complainant issued from OP2 hospital dated 12/10/2018, 03/12/2018, 08/02/2019. Ext.A3 to A5 shows that those OP records were issued by Dr. Anoop and advise was given by Dr. Anoop. Complainant also admitted the said fact during his cross-examination. Ext.B1(b) the case record of OP hospital pertaining to the treatment of complainant for a period from 13/08/2018 till 27/08/2018 shows that (page 17) surgeon who conducted surgery on the patient was Dr. Anoop. Here complainant alleged medical negligence on the Doctor who conducted 1st surgery on his left thigh. In this situation the learned counsel of OP argued that the complainant did not make an effort to include the appropriate party in the complaint. Further submits that since there is no proper necessary party in the complaint, it may not be maintained. Learned counsel of OP submitted a judgment of Hon’ble National commission. Anwar Husein Mohamed Chokwala Vs. Tata Motor Ltd and Aur, 2015 4 CPR (NC) 691, IN WHICH Hon’ble National Commission up held the decision of lower for a dismissing the complaint due to non-jointer of necessary party.
In this case also, there is non-joinder of necessary party. So as per the decision of Hon’ble National Commission in the above said judgment this complaint is not maintainable.
Ext. A3 and A4 were found that during the review time no complaint of pain or any discomfort raised by the patient to the consultant. It is seen in Ext.A5 dated 08/02/2019, that the patient came with C/o pain and he was advised to take X-ray.
The question to be decided is whether the complaint of pain on 08/02/2019 and conducting 2nd surgery on the patient (complainant) was the result of negligence committed by the OP No.1?
Ext.B1(b) and Ext.A1 shows that on X-ray taken on the admission dated of the complainant at OP hospital 13/08/2018 diagnosed comminuted supra condylar fracture of left femur extending from lower third femur and with intra articular extension into knee joint without any neurological deficit. The complainant was admitted for further evaluation of the fracture and CT scan was taken. Based on CT evaluation the final diagnosis was closed fracture of distal third femur comminuted with intra articular extension into knee joint with displacement of few fragments. Surgical fixation was done.
To prove the management and treatment given to the complainant was proper, OP has examined one Expert doctor in the orthopaedic department having 23 years of experience. He has been examined as Dw2. On analysis of the Evidence of Dw2, it is revealed that Ext. B1 shown to the witness is noted in the page 2. In page 28 ൽ CT scan റിപ്പോർട്ടിെൻറ extract പകർത്തിയിട്ടുണ്ട്. ഇത് പ്രകാരം fracture comminuted supra condylar fracture of the left femur extending from the shaft with intra articular extension into the knee joint ആണ്. This kind of fracture need surgical fixation and open reduction and internal fixation is a treatment choice of this fracture. ORIF is the best method to reduce non union, mal union, knee fitness and shortening of limb. സർജറി ചെയ്ത distal femoral locking plate ഉപയോഗിച്ചാണ് ഫിക്സ് ചെയ്യുക ഇതാണ് standard treatment. ഇത്തരം സർജറികളിൽ Mal union, non union, delayed union infection, implant failure എന്നിവ ഉണ്ടാവാൻ സാധ്യതയുണ്ട്. സർജറിക്ക് ശേഷം Check X’ ray എടുക്കുന്നത് പൊട്ടിപ്പോയ അസ്ഥികൾ ചേർന്നിട്ടുണ്ട് എന്ന് ഉറപ്പ് വരുത്തുന്നതിനും, implant െൻറ position ഉറപ്പ് വരുത്തുന്നതിനും വേണ്ടിയാണ്. Ext.A9 X-ray നോക്കിയാൽ spiral fracture ആണെന്ന് മനസ്സിലാവും. സംഭവിക്കുന്നത് കാല് തിരിഞ്ഞ് പോവുന്നത്കൊണ്ട് സംഭവിക്കുന്നതാണ്. വീഴ്ചയിലോ എന്തെങ്കിലും സാധനങ്ങൾ കാലിൽ വീണാലും സംഭവിക്കാം. Implant failure സംഭവിക്കുന്നത് റിക്കവറി പിരീഡി ൽ Repeat injury വന്നാൽ സംഭവിക്കാം. എല്ല് കൂടാതിരുന്നാലും സംഭവിക്കാം Infection വന്നാലും സംഭവിക്കാം. 18/02/2019 18/02/2019 എക്സറേ പ്രകാരം bone െൻറ ഒരു ഭാഗം ചേർന്നിട്ടില്ല. മറ്റ് ഭാഗം ചേർന്നിട്ടുണ്ട്. ഇത്തരം കേസുകളിൽ അടുത്ത നടപടി Broken implant എടുത്തുമാറ്റി alternative surgery plan ചെയ്യാം. വീണ്ടും അതേ Implant ഉപയോഗിക്കാൻ ബുദ്ധിമുട്ടാണ്. Ext.B1 പ്രകാരം സർജറി ചെയ്ത ഡോക്ടറുടെ ഭാഗത്ത് നിന്ന് വല്ല വീഴ്ചയും ഉണ്ടായിട്ടുണ്ട് എന്ന് പറയാൻ സാധിക്കുമോ? ഇല്ല very good fixation.
Hence from the evidence of Dw2 there is no medical negligence on the part of OPs. On this ground also complaint is liable to be dismissed. Another allegation raised by the complainant is that the implant plate is broken within 6 months after the surgery, is due to the usage of substandard implant at the time of surgery. According to complainant this is deficiency in service on the part of OPs 1 and 2.
OP No.1 has stated that the implant used for fracture fixation of the complainant was an ISO certified titanium distal locking plate and screws manufactured by Hrdik International Rajkot India Ltd. and the implant supplied by this company has been used in the orthopaedic department in the OP hospital for the past 12 years. Here burden of proof lies upon the complainant to prove his allegation. Complainant should have taken steps to sent the implant for examination by an expert and adduce evidence. In the absence of such evidence, and from the evidence of expert Doctor ‘implant failure സംഭവിക്കുന്നത് recovery period-ൽ repeat injury വന്നാൽ സംഭവിക്കാം. എല്ല് കൂടാതെ വന്നാലും സംഭവിക്കാം ഇൻഫെക്ഷൻ വന്നാലും സംഭവിക്കാം’, the allegation of complainant about using of substandard implant cannot be believed.
The learned counsel of OP submitted number of citations of Appellate commissions. a) It is well known that, there are risks and complications for all surgeries Manju Anil Chawla VS Jivandhara Hospital 2014 2 CPJ (NC) 261; 2014 1 CPR(NC) 236. b) In every case where the treatment is not successful or that 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. (Harish Kumar Khurana 2021 10 SCC 291) Followed in Chanda Rani v Methusethupathi 2000 0 Sup(SC 291. In Bombay hospital (AIR 2022 sc 204) case the Supreme Court held that in spite of treatment if the patient has not survived the doctor cannot be blamed as even the doctor with the best of their abilities cannot prevent the inevitable (Para 4). As already observed 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 cane, 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 obligationof the complainant to provide the facta probanda as well as the facta probantia. C P Sreekumar (Dr.), Ms (ortho) v S Ramanjuam, (2009 7 SCC 130). Medical negligence Burden is on the clamant to prove breach of duty. 2009(0) Supreme (SC)1153,2009(4) Supreme (SC)573. Even on merit, the “Non Union of Fracture” is an accepted complication following fracture surgery. Satender Kumar VS Indraprasth Apollo Hospital 2016 4 CPR(NC) 716. The complainant should be able ot prove a breach of duty and the subsequent injury being attributable to the aforesaid breach as well, in order to hold a doctor liable for medical negligence. M A Biviji VS Sunita 2023 0 Supreme (SC) 1072.
In the light of observations of the Hon’ble Supreme Court, and National Commission the complainant failed to establish any specific negligence committed by the OPs. Hence the complaint is liable to be dismissed.
In the result complaint is dismissed. No order as to cost.
Exts
A1- Discharge card dated 29/08/2018
A2- Investigation report dated 29/08/2018
A3- Out-patient record dated 12/10/2018
A4- Out-patient record dated 31/12/2018
A5- Out-patient record dated 08/02/2019
A6- Lawyer notice
A7- Acknowledgment card
A8- OP ticket
B1(a)&B1(b)- Case sheets
X1- Medical board certificate
Pw1-Complainant
Dw1-OP1
Dw2- Dr. Bindu vargheese-Witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
