DOF.7.8.2002

                                                                      DOO.7.5. 2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy              : Member

Dated this, the 7^th  day of May   2011

CC.194/2002

T.J.Mathew,

Thevalakkattu House,

Chempanthotty P.OL.,

Nediyanga Amsom Desom,

Taliparamba taluk.                                              Complainant

(Rep. by Adv.V.A.Satheesh)

1.Dr.V.Sunil,

   Orthopaedic Surgeon,

   Dept. of Orthopaedics,

   Academy of Medical Sciences Hospital,   

   Pariyaram.P.O.

   (Rep. by Adv.P.Mahamood)

2. Alphonsa Mathew, Head Nurse,

    Ortho-Department,

    Academy of Medical Sciences Hospital,

    Pariyaram.P.O.

    (Rep. by Adv.M.C.Ramachandran)

3.The Director,

   Academy of Medical Sciences Hospital,

   Pariyaram.P.O.

   (Rep. by Adv.C.V.Ramkrishnan)

4. The District Collector,

    The State of Kerala,

     Kannur.

   (Rep. by Adv.V.V.Gopinathan)                             Opposite parties   

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite parties to pay an amount of `5,00,000 together with interest @15%  with cost of this proceedings.

          The case of the complainant in brief is as follows: Complainant sustained fracture to his left lower leg as a result of  assault by certain persons and immediately brought him to opposite party hospital at about 10 p.m on 19.5.01. 1^st opposite party had treated the complainant. Wound cleaning, debridement and steel rod fixing were done. On the next day 1^st opposite party firmly turned complainant’s leg side ways and tried to forcibly bend it causing heavy pain. This practice was continued by 1^st opposite party for two weeks. He used to ridicule the complainant on seeing the hue and cry of the complainant while turning or bending his fractured leg. In fact while fixing the steel rods in complainant’s leg there existed a gap at the fractured site caused due to the inappropriate internal fixation done by 1^st opposite party. Thereafter in the first week of June 2001  opposite parties 1 and 2 had  forcefully took the complainant near to the operation Theater at 9 A.M and the complainant was made to ley on the stretcher in the open varandha of the Theatre till  1 p.m. Thereafter the complainant was taken inside the operation theatre. Apart from opposite parties 1 and 2  two other doctors were also seen present there. All of them forcefully administered drugs on the complainant and he was put under anaesthesia. Thereafter the steel rod was removed from the left leg. Five holes were drilled indiscriminately in the bones and a steel tube was fixed in the left lower leg. In the night, when the complainant regained his full consciousness, he was shivering with fever. Two bottles of blood was given to the complainant on the next day. Two separate lengthy wounds were made in the complainant’s left lower leg, one for removing the steel rod and the other for inserting the steel tube. 1^st opposite party obtained  `500 each as bribe.  Complainant was given 2 bottles blood and afterwards without anaesthesia opposite parties 1 and 2  with the help of Dr.Sanothsh and  another staff put the driller on the complainant’s leg bones and made many other holes therein. On another day a portion of the left leg bone was removed by using a cutter by opposite parties 1 and 2 without giving anaesthesia. X-ray will reveal the deficiency in the services of the doctor. On 7.8.01 again the complainant was taken to Operation Theatre and many experiments were done by opposite parties 1 and 2 on his leg after putting him under anaesthesia. When he became conscious he found that the length of leg was reduced by 2 inches by cutting and removing that portion of the leg bone where they have drilled unwanted holes. No consent was obtained from the complainant. The cutting was a cheat. Opposite parties 1 and 2 made false entries in the records of treatment. Complainant was totally bedridden.  Due to carelessness of opposite parties 1 and 2 infection was developed on the wound of the complainant. Proper antibiotics were not given.

          Opposite parties 1 and 2 were having animosity towards the complainant and they were intended to harm the complainant. Therefore on 20.8.01 the complainant got discharged on request from  opposite party’s hospital.  Then he was admitted in Justice Hegde Memorial Hospital, Mangalore from 20.8.01 to 14.9.01, again from 15.11.01 to 28.11.01 and again from 8.6.02 to 22.6.02. The medical advice is that most probably complainant’s lower leg has to be amputed for retaining his life. The opposite parties failed to exercise even the ordinary skill of medical men. Hence this complaint.

          Pursuant to the notice opposite parties entered appearance and filed version.

          Contention of 1^st opposite party in brief is as follows: Complainant was brought to hospital on 19.5.01 at 6.00 p.m with alleged history of fall and injury to left leg just above ankle joint. Surgical casulity medical officer who attended the complainant recorded that the patient had a compound fracture of left leg with bone protruding out with heavy contamination. The complainant had smell of alcohol in his breath. At 6.10 p.m complainant changed history of injury and stated he was assaulted with stone and iron rods which was re-recorded by Chief Medical Officer with time in OP card. 1^st opposite party saw complainant at 6.30 p.m and obtained a history from complainant of alleged assault, throwing with iron rod (kambipara)and fall from a bridge in to water at about 4 p.m. at Chembanthotty. Complainant was under the influence of alcohol. 1^st opposite party had done detailed examination and found he had complex and serious injury. The complainant had lacerated wound 15x4x1cm on the medial aspect  of lower end of the left leg with severe contamination with protruding lower 1/3^rd of Tibia and with contamination of proximal fracture site and bone-small bits of paper dry leaves and mud were the contaminants. Posterior tibial artery and nerve were found exposed through the wound, the artery without pulsation and the nerve found contaminated and crushed at one site. Whole of distal end of gastrocnemius and soleus muscles were found crushed contaminated and exposed, Dorsalis pedis artery pulsation was found diminished. A clinical diagnosis of open Grade III C fracture dislocation Potts – left, was made. After X-ray and preliminary management, namely Inj.TT, ATS,IV antibiotics, wound cleaning and  splinting, the complainant was brought to the operation theater at 7.45 p.m for debridement and fracture stabilization. The complainant and his relatives were informed before the surgery about the nature of fracture, extent and type of contamination injury to nerve and blood vessel, the chances of the need for amputation, infection, need for multiple surgeries and the possibility of stiffness and shortening, after explaining all these, a written informed consent incorporating all such details was obtained before surgery. On the operation table, 1^st opposite party found that the complainant’s fracture had an extension into ankle joint also .There was bone loss and contamination of bone and soft tissue was present. Debridement was done and stabilization of fracture with 3 thick K wires was done. Partial closure of wound was done to facilitate drainage. After dressing, Below Knee Plaster of Paris slab was given as external stabilization. Post operatively the complainant was given antibiotics and analgesics. Post operative X-ray taken on 21.5.01 showed good alignment. Blood transfusion was given on 20.5.01 and 21.5.01. First wound inspection and dressing was done on 22.5.01.After that regular alternate day dressings and later daily dressing was done. When discharge from the wound was noted antibiotics were changed and pus culture and sensitivity was also done. One suture was removed on 25.5.01 and on 2.6.01; sutures were removed from the lower part of the affected leg as there was infection. On 6.6.01 multiple drill holes were put on the lower end of outer cortex of dead tibia bone to facilitate removal of the collection of discharge, to remove dead bone and for granulation tissue to come out. This is a painless procedure since only the dead outer cortex bone is removed. After this procedure there were no complaints of excess pain during the night of 6.6.01. On 8.6.01 the complainant was given a blood transfusion and was posted for external fixation on 9.6.01. On 9.6.01 external fixation and wound debridement was done after obtaining detailed informed consent from the complainant. The need for external fixation, chances of anaesthesia, need for repeat surgeries and chances of continuation of infection and possibility of shortening were explained to the complainant. Post operatively the complainant was shifted to the surgical intensive care unit.  Antibiotics and analgesics were continued. The complainant developed fever, rigor and chills as a reaction to IV fluids. No blood was given on 9.6.01. When the general condition of the complainant improved he was shifted to the ward at 6.00 p.m on 9.6.01. Daily wound dressing and surgical wound care was carried out in the ward. On 22.6.01 and 30.6.01, cortical bone infection was noted and bits of dead bone were removed. On 7.7.01 since the wound condition was not improving, the complainant again underwent redebridement after informed consent. On 2.8.01 X-ray of the complainant’s affected leg showed evidence of sequestrum. On 7.8.01 sequestrectomy and docking was done and realignment of fixator was also done. The specimen was sent for histopathological report. The report came as acute on chronic osteomyelitis. On 8.8.01 repeat X-ray was taken. On 9.8.01 since the alignment was good the complainant was advised fixator removal and above knee plaster of Paris cast. But complainant was not willing. So cleaning and dressing was done. On 18.8.01 the complainant had shoulder pain and X-ray was advised, but complainant was not willing. The complainant was given further treatment till 20.8.01 on which date he obtained a discharge against medical advice taking al the six X-rays with him after giving a receipt. The complainant had given inconsistent statements who attended on him. The complainant initially told the duty medical officer that he sustained the injury due to a fall. Later he told the duty medical officer that he was assaulted with stone and iron rod. But he told 1^st opposite party that he was assaulted by  throwing of an iron rod and that he fell from a bridge in to water at about  4.00 pm at Chambanthotty. The allegation that the opposite party turned firmly the left leg of the complainant and tried to forcibly bend it and thereby putting the complainant in heavy pain is false. The first wound inspection is done on 22.5.01 morning. In spite of bone loss, proper alignments of the bones were achieved through surgery. The above loss is recorded in the operation notes. The allegations that the complainant was made to lay in the open varanta till 1.00 p.m, forcefully administered drugs and put on anaesthesia etc. are false. Since infection was not under control a redebridement and restabilisation was planned. Consent was obtained and operation was done on 9.6.01. No force was done and whole procedure was done with his consent. The complainant’s allegation that 5 holes were discriminately drilled in the bones is not true. It was done for the definite purpose of stabilization of the leg with an external fixation. Five Shanz screws for external fixator were passed through small incisions and K-wires were removed. It is false to say the complainant was shivering with fever in the night is not correct. The complainant had fever and chills in the post operative period at 3.00 p.m which was treated promptly and no fever at night. The allegation that two lengthy wounds were made in the leg is false. This opposite party did not receive any bribe from the complainant or his relatives. The allegation that a portion of the left leg was removed by the 1st opposite party and repeated cutting of leg bones was done is misleading and is denied by the opposite party. Only non viable dead bone piece were removed. Approved and standard treatment modalities were only adopted. The dead bone was removed not to shorten the complainant’s leg but to serve his leg, since the presence of dead bone would prevent control of the complainant’s infection. It is essential for the union of bones. Consent was taken from the complainant or his son prior to surgeries done on him on the various occasions. But the signed consent obtained from the complainant is missing from the case sheet and on notice matter was informed to the medical superintendent and the same was recorded. The fall of complainant in the toilet is true and it was recorded in the ward report book dated 8.6.01. Properly sterilized and infection free surgical instruments and sterile surgical materials were used for the treatment. Infection developed because the wound was heavily contaminated at the time of hospitalization. Infection failed to get controlled because of the presence of dead and devitalized tissues at the site of injury. Opposite parties 1 and 2 were having animosities is a false allegation. There was no carelessness on the part of opposite parties.Hence to dismiss the complaint.

          2^nd opposite party has no separate version.

          3^rd opposite party filed version contending as follows: -It was not known how exactly the complainant sustained injury. At first he stated it is sustained due to injury and duty medical officer recorded it. Later he changed his statement and told the duty Medical Officer that he sustained injury following an assault with stone and iron rod and fall from bridge into water at about 4 p.m. the complainant reached hospital at 6 p.m on 19.5.01. Duty doctor gave injection and 6.35 p.m he was attended by Orthopedic surgeon. He recorded the patient was under influence of alcohol. Complainant had lacerated wound 15 X 4 X 1 cm on the medical aspect at the lower and a left leg which was severally contaminated. The lower 1/3^rd of tibia was protruding out of the wound. The proximal fracture was also contaminated with small bits of paper, dry leaves and mud sticking to it. Nerve was found contaminated and crushed at one site. Whole of distal end of Gastrosoleus muscle was found crushed, contaminated and exposed. Patient was shifted to the operation theater at 7.45 p.m. Consent in writing was taken. During surgery it was found that the fracture had intra articular extension into the ankle joint. Bone loss also found. Debridement, stabilization of fracture with 3 thick K wires, partial clauses of wound etc. were done. Stabilization of fracture with below knee plaster of Paris slab was given. The statement that complainant’s leg was turned in order to inflict pain is not true. The first wound inspection was done on 22.5.01. Post operative X-ray showed good alignment although there was bone loss. Bone loss was recorded in the case sheet. Since infection was to getting controlled a re-debridement and re-stabilization was planned after culture report of 30.5.2001. Detailed consent was taken and after explaining complications patient was shifted to operation theatre on 9.6.2001 and surgery was done till 1.30. 5 Shanz screws for external fixation were passed through small incisions and K wires were removed. The five holes were drilled with the definite purpose of stabilization the leg with an external fixation. Blood was transfused. He had fever and chills in the post operative period at about 3 p.m. This was a result of reaction of IV fluids. It was promptly controlled and transferred to the orthopaedic ward at 6.00 p.m. The patient had no fever at night which can be seen from the temperature chart. The contention that has been taken by the  1^st opposite party is repeated by 3^rd opposite party and to avoid unnecessary repetition it is not again written here.3^rd opposite party contended his contention stating that the complainant came with complicated fracture of the left leg which was compound and heavily contaminated with bone loss. The subsequent infection and prolonged convalescence was direct consequences of the grievous nature of the injury and not as a result of negligence.

          4^th opposite party filed version separately contending as follows: the management of Medical college and co-op. Hospital is vested with the society itself. The Govt. is unnecessary party to the proceedings and therefore the supplemental 4^th opposite party, the state of Kerala have to be deleted from the party array. There is no merit in the case of complaint.

          On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite

     party? If so who is liable?

2. Whether the complainant is entitled for the relief as prayed in

     the complaint?

3. Relief and cost.

The evidence consists of oral evidence of PW1, DW1, DW2 and DW3. And documentary evidence Exts. A1 to A28, X1 and B1 to B 13

Issue Nos.1 to 3

Admittedly complainant admitted to Pariyaram Medical College on 19.5.2001 since he was sustained injury causing fracture to both bones of his left lower leg. 

          Complainant’s case is that 2^nd opposite party is in enemical terms with the complainant. 1^st opposite party treated the complainant and done wound cleaning, debridement and steel rod fixing etc. On the next day 1^st opposite party firmly turned the left leg side ways and forcibly bend it putting the complainant in heavy pain. This practice was continued by 1^st opposite party for two weeks. While fixing the steel rods there existed a gap at the fracture site since 1^st opposite party failed to exercise reasonable degree of skill, knowledge and care. Later a portion of complainant’s left leg bone was cut and removed without obtaining consent. Complainant sought discharge on 20.8.01 for fear of his life and admitted in Justice Hedge Memorial Hospital, Mangalore. Complainant could save his life but his left leg practically became dead. He walks on crutches. The bones are not yet united and there is no scope for it now.  Complainant is still undergoing treatment.

Opposite party on the other hand contended that complainant came with a complicated fracture of the left leg which was compound and heavily contaminated with bone loss. Subsequent infection and prolonged convalescence was direct consequences of the grievous nature of the injury and not as a result of negligence.

          Complainant was admitted in the opposite party’s hospital on 19.5.01 and discharged on 20.8.01. During these three months treatment in the opposite party’s hospital it could be seen that the complainant was taken several times in operation theatre and conducted operation. Opposite party was not able to control the infection at any stage of the treatment. This is a case from the very starting point opposite parties were well aware of the seriousness of injury since the patient had compound fracture with bone protruding out with heavy contamination. There is no difficulty to understand the possibility of infection development of infection because of the heavy contamination. The explanation of opposite parties why did they failed to bring the infection under control is that of the reason of existence of dead and devitalized tissues at the site of injury.

Opposite parties raised the contention that the complainant came with complicated fracture of the left leg which was compound and heavily contaminated with bone loss. The subsequent infection and prolonged convalescence was direct consequences of the grievous nature of the injury and not as a result of negligence. Opposite party further contended that the infection developed because the wound was heavily contaminated at the time of hospitalization and the presence of dead and devitalized tissues at the site of injury caused the non control of infection.

          Complainant in his pleading stated that he was assaulted by two persons with iron rod and granite stone resulting in fracture to both bones of the complainant’s left leg. The complainant was first attended by Surgical Causality Medical officer Ext.B12 case sheet goes to show that it is recorded compound fracture of left leg with bone protruding out and heavily contaminated. It is also recorded smell of alcohol.

          1^st opposite party in his proof affidavit stated that he was the duty orthopedic surgeon at the hospital when the complainant was admitted in 3^rd opposite party hospital. He has submitted that complainant was examined by him. He deposed that complainant had a lacerated wound 15 x 4 x 1 cm on the medical aspect of lower end of left leg with sever contamination with protruding lower 1/3^rd of Tibia and with contamination of proximal fracture site and bone-small bits of paper, dry leaves and mud were the contaminants. Posterior Tibal artery and never were found exposed through the wound, the artery without pulsation and the nerve found contaminated and crushed at one site. Whole of distal end of gastronomies and soleus muscles were found crushed, contaminated and exposed. Dorsal is pedis artery pulsation was found diminished. A clinical diagnosis of open grade IIIC fracture of dislocation Potts-left was made. DW2 in his cross examination by 1^st opposite party deposed that the injury is  severe and almost near total amputation.

          The evidence on record together with the deposition of DW3 it is quite clearly reveals the high degree of the severeness of the injury. It can be seen that there is dispute regarding the incident. 1^st opposite party has stated in affidavit evidence that complainant was brought with alleged history of fall and injury to left leg, just above ankle joint. But after some time he changed the history of injury as assault with stone and iron rod. In the pleadings it has stated assaulted the complainant with iron rod and granite stone resulting in fracture to both bones of left lower leg. Ext.B12 case record it is recorded alleged fall at the beginning. It is recorded by the attended doctor, the surgical causality Medical Officer. After some time it is recorded injury is by assault and iron rods.

          The  Duty Orthopedic surgeon the 1^st opposite party saw complainant after some time and obtained a history from  the complainant which found place in Ext.B12 page 2 of out patient  card by him as “ Assault by throwing with IT]n ]mc and fall from bridge in to water at about 4 P.M at Chempanthotty”. Ext.B1 the attested photocopy of the extract of police intimation register issued by Medical Superintendent to station House Officer goes to show that the complainant has been brought in to the hospital    on 19.5.01 alleged to have been Assaulted/fall from height at 4 a.m. This conflicting history given by the complainant has been repeated in ext.B2 also. Ext.B3 first Information shows recorded that “ A\-ym-b-¡m-cs\ IÃvsIm-s­-dn-RvRhogv¯n CSXp-Im-en\p Kpcp-X-c-ambn ]cn-t¡Â]n¨p F¶pT aT” . So also the mahasar of place of incident in details explained thus: “sNT-]³s¯«n Ic-b-¯p-T-Nm tdmUn-ep-ff Iep-¦nsâ sX¡p-`m-K-¯p-ff Dt±-iT 45 cm Db-c-ap-ff `n¯n-bnÂ\n¶p Dt±-iT 4 ao XmgvN-bp-ff tXmSmWv kT-`-h-eT”. The smell of alcohol, though not material aspect, the possibility of increasing the gravity of injury cannot be rejected. Anyway, the above explained facts reveal that injury sustained is as the complainant reported at first. The mahazar of place of incident helps to infer the possibility of fall from bridge. Nature of injury also indicates the fall from bridge. It should also be taken into account that what is recorded immediately after the admission of the complainant by the then duty doctor shall be reliable if otherwise proved. Any how  the immediate recording regarding the injury as well as the history of incident and other evidence on record itself proves that complainant was admitted to the hospital with a very serious injury sustained by alleged assult, throwing with iron rod and fall from the bridge.

          Complainant adduced evidence by chief affidavit that after  reaching hospital 1^st opposite party treated him, cleared the wound, fixed steel rods at the fractured site and wound debridement was done. The case of the opposite party is that he had done detailed examination and found complainant had complex and  serious injury. After X-ray and preliminary management namely Inj. TT, ATS, IV antibiotics would cleaning and splinting complainant was taken to operation theatre for debridement and fracture stabilization. DW2 expert doctor has explained in his evidence that debridement means cleaning and removing all dead tissues including dead bones removing mud, stones, foreign particles from the wound.  1^st opposite party also stated that on the operation table he could find that fracture had an extension in to ankle joint also. He also  found that there was bone loss and contamination of bone and soft tissue was present. He further stated that debridement and stabilization of fracture with 3 thick K wires was done. Partial clause of wound was also done to facilitate drainage after dressing, below knee plaster of Paris slab was given as external stabilization. 1^st opposite party has further stated that post operatively the complainant was given antibiotics and analgesics. He has also stated that post operative X-ray taken on 21.5.2001 showed good alignment. Blood transfusion also given on 20.5.2001 and 21.5.2001.

Complainant has admitted in his chief affidavit that steel rode was fixed at fracture site and debridement was done. But complainant alleged that on the very next day 1^st opposite party firmly turned his leg side ways and tried to forcibly bend it and further this fracture had been repeated for over weeks. He further alleged that while fixing the steel rods there existing a gap to the fracture site due to inappropriate internal fixation. Existence of the gap alone is the allegation of the complainant with respect to the procedure adopted by the opposite party on the 1^st day. Opposite party has stated in his chief affidavit that post operative X-ray taken on 21.5.2001 showed good alignment. So it can be valued on examination of the X-ray concerned taken on21.5.2001. This X-ray has not been produced before the Forum. It is a very relevant document. The doubt regarding perfectness of alignment could have been perfectly ascertained on examination of 1^st  post operative X-ray.

Ext.A7 is the copy of the lawyer notice sent by complainant to opposite parties dated 6.5.02. As per Ext.A7 he has no complaint against treatment of 1^st opposite party on the 1st day of his admission. That means complainant has no complaint with respect to the procedure adopted by 1^st opposite party on the first day of his admission. The notice speaks thus “my client was feeling better then” –which means the operation conducted on the first day was fully successful. In other words good post operative bone alignment had been obtained after the surgery. Pleadings and evidence adduced by proof affidavit also agree with the statement given in Ext.A7. In contrary to the spirit of this statement regarding first operation in the first day of admission has been revealed neither in the pleadings nor in the chief affidavit.  It is pertinent to note that the first post operative X-ray is in the hands of complainant. If he failed to produce that X-ray he cannot develop his, case over and above the spirit of Ext.A7, which makes it clear that there was good post operative bone alignment. Complainant deposed in his cross examination that he was not remembering whether he has taken back all the X-rays on written receipt-signature in the call sheet. However complainant has not denied blatantly. He was trying to obfuscating the Forum by telling that he was not remembering. Page 33 of Ext.B12 goes to show the endorsement made by the complainant thus: 20/8/2001 Fsâ-Nn-In-#176;T Bip-]-{Xn-bn shs¨-Sp¯ FIvksd 6 F®T Rm³ kz-´T CjvS-¯m sIm­p-t]m-Ip¶”‘. This endorsement hugs the truth making clear that the X-ray has been kept under the custody of complainant. But he has also admitted that all the X-rays taken back from 3^rd opposite party hospital has not been produced before the Forum. Complainant didn’t feel that it is a relevant document. He has no explanation for not producing this document. It can only be considered as a suppression of material fact before the Forum. Complainant has the liability to prove the case to bring the truth before the Forum without hiding the material fact. Non production of this post operative X-ray without any explanation amounts to suppression of material fact and the inference undoubtedly is nothing but the procedure adopted by 1^st opposite party was acceptable.

Complainant has raised a serious allegation that on the very next day of the operation, the doctor 1^st opposite party firmly turned his left leg side ways and tried to forcibly bend it putting the complainant in heavy band. This practice was continued for weeks and the doctor used to ridicule him on seeing hue and cry of him while turning and bending fractured leg. This is an allegation which requires deep scrutiny so as to find the truth. Ours is an educated society, which doesn’t permit to tolerate such inhuman criminal acts that derisively challenge the great tradition of our culture.

It has to be taken into account that the alleged act has been in a ward where there is several other patients are admitted. Moreover, the bystanders with the complainant are also witnessing this act. It is wonderful to see even after repeating this act following hue and cry of complainant no one made enquiry either with the treating doctor or with the management of concerned department of the hospital the reason for the turning of leg left and right unnecessarily. This is a case opined by the expert DW2 as a case near the amputation. Such a leg after a major surgery turned left and right and attempted to bend repeatedly for more than a week will definitely begot unforeseen consequences. Even the son of the complainant did not make an enquiry at least with the treating doctor the reason for such an inhuman act. Ours is a society even the general public will not be hesitate to interfere against such an inhuman act. It is wonderful to see no one even relative did not make any protest under such situation as pleaded by the complainant. Complainant did not take any initiative to examine a single witness to prove this act of the opposite party. At least his relatives or friends who witnessed the seen could have been examined before the Forum. Complainant has no case that these acts for over a week have been done secretly. This is a serious allegation which alone is sufficient if it is proved enough to establish the negligence and deficiency in service on the part of opposite party fort the relief sought for. It is quite wonderful to see that complainant has not taken any interest to adduce supporting evidence, which only leads to suspect the verity of the complainant. Mere pleading is not evidence.

1^st opposite party contended specifically that  on the relatives of the complainant were informed before the surgery about the nature of fracture, extent and type of contamination, injury to nerve and blood vessel, the chances of the need for amputation, infection, need for multiple surgeries and the possibility of  stiffness and shortening. After explaining all these, a written informed consent incorporating all such details was obtained before surgery. Complainant raised issue of consent with respect to the third operation only. This indicates naturally that there is no issue of consent in the case of 1^st operation. The issue of consent arose only   in the case of 3^rd operation. One thing can be clearly seen that complaint of the complainant started with the treatment next day of the admission onwards. He has no complaint with the treatment or dealings of opposite parties with regard what had been done on the day of first examination after the admission. Complainant has admitted that 1^st opposite party had treated the complainant; he cleaned the wound, fixed steel rods at the fractures site and has done wound debridement etc. But nothing has seen with respect to the consent. If there was no consent complainant would have raised this in the pleadings itself .There is no need to disbelieve the contention of the opposite party that written consent was obtained. Ext.B12 (a) is the written informed consent given by the son of complainant which contains thus:    “ Imensâ AkvYn s]m«n sXmen-s]m-d¯v shfn-bn-te¡v hcn-I-bpT AXn a®npT,C-e-I-j-W-§ t]¸ a amen-\-y-§fpT FÃn ]-bn-cn-¡n-I-bpT  Imensâ c¡p-g-en-\pT Rc-T-]n-\pT £XT kT-`-hn¨p F¶v tUmIvS]dªv a\--em-¡n-X-¶p. Nne-t¸mImev \S-jvS-s¸-Sm-\p-ff Ah apdnhv ]gp-¡m-\p-ff Ah`mhn-bn 3,4 Hm¸-td-j³ hcm-\p-ff km²-yX A\-¡-¡p-dhv Ch-sb-ÃmT tUmIvS]dªv a\--em¡n t_m[n-¨p. Hm¸-td-j\v ]q k½-X-am-Wv.-`-hn-j-¯p-Ia\--em-¡n. Chsc NnIn--¡p-¶-Xn\p k½-X-]-{X-T-X-¶p-sIm-f-fp-¶p. The contents of the letter show that the Doctor concerned has exhaustively explained the nature of injury and its possible consequences in future.

          The above discussion in toto undoubtedly makes it clear that the injury sustained by the complainant was a sever one. From the very outset it was ascertained the necessity of multiple operative procedure which require prolonged reconstruction time. Final diagnosis recorded in Ext.B12 is compound comminuted lower 1/3 of tibia, fibula  bone loss and intra articular extension”. The operation done was wound debridement and 1” partial closure to facilitate drainage and fixed E 3 K wire external fixation done”. The evidence of DW2 that the injury is sever and almost near amputation has much relevancy with this operational procedure. In a case where multiple operative procedure expected due to severity of injury the evidence of DW2 make ascertained as is stated in Hand Book of Fractures 2^nd Edition, this is a case wherein early amputation may be considered. Page 14 of the Hand book under the side heading can be read that early amputation may be considered if severity of the injury would demand multiple operative procedures and prolonged reconstruction time that is incompatible with the personal, sociological and economic consequences the patient is willing to withstand. This shows opposite party as successful in completing the procedure adopted on the first day avoiding amputation.Ext.A7notice also evident that the complainant was also felt well after the surgery. Taking into consideration the severity and seriousness of the injury it can be said 1^st opposite party has done his work with great effort reflecting his volition to put in order and amilisrating the condition of the leg of the complainant. It is true that the complainant has alleged that while fixing the steel rods in complainant’s leg there existed a gap at the fractured site. Opposite party has a definite case that internal fixation as in the present case wherein bone-loss was present, can only be done by leaving a gap at the fractured sight, which will  be filled by bone-grafting, subsequent  procedure. Complainant has not taken any initiative to prove that this procedure was wrong. Complainant has not put any question to DW3 in cross examination. If complainant has specific case on this issue DW3 would have been cross examined on this aspect. No suggestion was put to the witness. It is more wonderful in the case of DW2 Dr.Gopinathan,P, DW2, Associate Professor, Dept. of Orthopedics, Govt. Medical College, Calicut, is a medical expert in this field. Complainant has not made any attempt by way of cross examination to bring out those facts relevant with the procedure adopted leaving gap at the fracture site. No question put to witness DW2 by the complainant on this aspect together with non examination of any other witness to prove that the procedure adopted by 3^rd opposite party has been deviated from the line of acceptable   operative procedure, reveals that complainant is not so serious about this allegation. It is not merely the question of partiality. An expert is bound speak of those aspects wherein his expertness is required if asked to explain what is brought out from him together with documentary and other eminences shall be subject to assessment so as to come to conclusion. Complainant if not examining expert witness on his side, he shall be more vigilant and strenuous to bring out the facts as far as aggrandize the availability of facts by utilizing the opportunity in cross examining the available expert medical witness in this field. DW2 is a well known expert in this filed. Non utilizing the opportunity to subjugate by cross examination to   elicit more facts and details from this   witness with respect to the subject matter of filling up of gap by bone-grafting has only been beget an impression adverse to complainant. Complainant has also undergone treatment in other institutions viz. Justice K.S. Hegde Charitable Hospital, Mangalore and Kasturba Hospital, Manipal. No records from these hospitals will reveal that they are under the impression that the treatment including internal fixation done from 3^rd opposite party were wrong. So looking back to evidence it can be seen that there is no medical opinion to conclude that the procedure of leaving gap at the fracture site is wrong against   accepted line of practice. Simply thing went wrong and a patient has not favourably responded to a treatment given by a doctor or a surgery failed the doctor cannot be held strait away liable for the medical negligence. Complainant should discharge his initial burden to prove that the opposite party has fallen below that of the standard of a reasonably competent practitioner in his field.

Complainant further alleged that he was forcefully taken to operation theatre in the first week of June 2001 at about 9 A.M and kept open in front of the theatre till 1 P.M has been denied by the 1^st opposite party. Complainant could have  proved this by examining at least  a bystander but failed to produce any witness. His further allegation is that he was then taken to theatre and administered drugs forcefully and he was put under anaesthesia. Thereafter steel rod was removed and five holes were drilled indiscriminately in the bones and steel tub was fixed.  It has been explained by opposite parties that infection was found not under control, by pus culture report and instability at fracture site. Thereby planned for redebridement and restabilizations. Thus informal consent was obtained from the complainant and surgery was done on 9.6.2001. Ext.B12 page 3 shows the consent letter Ext.B12 (b) which reads thus:

          Complainant has denied his signature in his evidence. But one thing cannot be ignored. There are so many documents before this Forum which contains complainant’s signature. For example two signatures in the complaint and signature in consent Form (Ext.B12 page 2), vakalath and five signatures in the certified true copy of complaint in C.C.394/2004 court, Payyannur are all seems to be similar. Hence there is no need to hesitate to believe that the signature seen in Ext.B12(b) is that of the complainant so the consent to the  second operation is undoubtedly proved. Opposite party explained that a debridement and restabilisation was planned since infection was not remained under control as it was evidenced on pus culture. Complainant himself stated that at the time when he entered in the operation theatre there were two other doctors. It shows it was a group of doctors attended the patient. It was certain consultation of a group of doctors were available on the day whatever maybe the consequences. Ext.B12 case sheet recorded external fixation and debridement has been done. DW2 medical   expert Dr.P.Gopinathan explained debridement means cleaning, cutting and removing all dad tissues including dead bones removing foreign particles from the bone. Clinical note on discharge card Ext.A4 reveals that this is a case of GIII c fracture. It is not come in evidence that debridement in such a fracture is unusual. The complainant’s allegation that 5 holes were indiscriminately   drill in the bones is specifically denied by the opposite parties and contended that five holes were drilled in the bones for the definite purpose of the stabilization of the leg with an external fixation. Further five Shanz screw for external fixation were passed through small incisions and K-wires removed. When the opposite party claims that it is not done indiscriminately and done for specific purpose the burden goes with the complainant to prove that it is a wrong procedure.

          Complainant has also alleged that 1^st opposite party received bribe two times from his son. If son is not examined to prove it, it is helpless to say that it is true.

          The most serious allegation raised by the complainant is that a portion of his left leg bones were cut and removed reducing the length of the leg without his consent. Opposite party admitted the operation and explained that on the basis of the sequestorum found in the X-ray taken on 2.8.2001, the complainant was taken up for surgery on 7.8.2001. He admitted that sequestrectomy and realignment fixation was done after obtaining consent. 1^st opposite party contended that sequestrum was removed and sent for Histopathological examination and the report came as acute on chronic osteomyelitis. DW2 the medical expert in his evidence deposed that sequestrum is dead bone and it should be removed at the earliest in order to avoid further spread of infection. He has also deposed that it is due to absence of blood circulation due to the initial injury. The necessity of procedure can be accepted by the evidence of DW2. The dead bones should be removed in any way as early as possible especially in this case considering the severity of injury and possibility of complication while considering that this is a case wherein severity of injury is such a nature near amputation, the removal of dead bones at the earliest cannot be prevented. Complainant failed to adduce evidence in accordance with his pleadings. These procedures not proved wrong.

          However whether there is informed consent or not is a question to be examined even if there exists the necessity of operation at the earliest. Opposite party contended that there is consent. On 6.8.2001 Doctors orders shows recorded “Take written consent”. So also page 67 of Ext.B12 further  shows recorded “consent to be taken”. Page 68 also written “Bystanders consent taken” and below recorded “consent taken”. It reveals that the aspect of taking consent has been attended. But page 70 it was recorded “consent Form was missing from the case sheet informed medical superintendent”. Further endorsement regarding consent can be seen in page 31 as

“ case sheet found tampered. Consent of sequestrectomy taken on 7.8.07 missing from case paper”. And then below written to Medical Superintendent informing that “ The consent taken from this  pt and bystanders for sequestarectomy and docking was found missing from  page No.5 etc.”.

          Whatever may be the reason the missing of consent of serious operation wherein complainant’s/ patient consent was taken should be dealt with as it deserves. There is no answer for this question on the part of opposite parties. It is a document kept and maintained by opposite parties. Hence they are answerable for the missing. Any leniency towards this negligence will certainly encourage sense of irresponsibility and carelessness. The sense of keeping the case sheet with its sanctity should be protected. The authorities don’t give much importance to keep the case sheet as a precious document. Most of them are carelessly dealing this document. Tampering of this document is a warning to be alert to take precaution not to repeat the same. The missing of this document is definitely a negligence that amounts to deficiency in service. If there is deficiency in service there arose the question who is liable to meet the liability.

          Opposite parties 1 and 3 has the case that if there is any liability the Govt. of Kerala shall meet the same since the administration of opposite party had been in the hands of Govt. Administrative change technically speaking has only been considered as temporary arrangement of administration for the purpose of saving the institution from the administrative dead lock. It is not a permanent set up. It is a demand of a given situation which necessitates a temporary set up of administration for a period statutorily required, and not more not less. Anyhow until and unless it is proved Govt. has taken away or shared with any commercial economic benefit the liability does not follow the Govt. The detachment is complete whenever the new governing body takes over the power. Hence liability cannot be casted upon the govt.

          The relevant entries in the case sheet show that the missing of the document has been reported to 3^rd opposite party. The nature of entries in a way can be considered  that they were vigilant to obtain the consent and there by it can be assumed that the consent might have been taken. Then the question   creep up is that what had happened thereafter to trace out the document. It can be seen nothing had happened. The superintendent to whom the communication  was sent kept it safely without taking any action.  Since no action has been taken by 3^rd opposite party to trace out the document the liability lies with 3^rd opposite party hospital.

          In the light of the above discussion based on the available records we find deficiency in service on the part of 3^rd opposite party and we are of opinion that an amount of `25,000 as compensation will meet the end of justice.  Complainant is also entitled for an amount of `2500 as cost of these proceedings. Thus issues 1 to 3 are partly found in favour of the complainant and order passed accordingly.

          In the result, the complaint is allowed directing the 3^rd  opposite party to pay   `25,000 (Rupees Twenty five thousand only) as  compensation together with `2,500 (Rupees Two thousand Five hundred only) as cost to the complainant within one month from the date of receipt of this order, failing which the complainant shall be entitled for 18% interest from the date  of order till the payment. Complainant is at liberty to execute the order after the expiry of one month.

               Sd/-                     Sd/-                  Sd/-

          President              Member                Member

APPENDIX

Exhibits for the complainant

 A1.Certificate issued by Dr.Mohankumar ,Primary Health centre,

     Naduvil.

A2.Copy of the certificate dt.22.6.02 issued from Justice K.S.Hegde

      charitable hospital

A3.Lab reports

A4.Discharge  card issued from  3^rd OP dt.20.8.01

A5.Copy of the complaint filed before  Payyannur  1^st class judicial

     Magistrate in CC.394.04

A6.Docket sheet in CMP.6528/02in CC.394/04

A7.Copy of the lawyer notice dt.6.5.02 sent to Ops

A8.Postal AD cards

A9.Discharge summary issued from Justice Hegde charitable hospital

     in IP.NO.326859 dt.1.5.05

A10.Medical certificate dt.1.5.05 issued from  “   “

A11.TR5 receipt and cash bills issued from Hegde hospital and

         medical stores

A12.Medical certificate dt.2.7.05 issued from Justice Hegde charitable

       Hospital

A13.Discharge summary dt.5.8.05 issued from Justice Hegde

       charitable   Hospital

A14.Cash bills issued from Justice Hegde charitable

       Hospital

A15. Discharge summary issued from Justice Hegde charitable

       hospital in IP.NO.326859 dt.18.12.05

A16. Bills issued from Hegde  Charitable hospital (Total charge)

A17.Cash memos

A18.Cash bills issued from  Hospitals and medical stores.

A19.Discharge summary issued from Justice K.S.Hegde Charitble

      Hospital,

A20.Certificate dt.7.1.06 issued  from Kasturba Hospital, Kannur

A21.X-rays  taken from K.S.Hegde Charitable hospital

A22.X-ray

A23.Discahrge summary issued from Christian Medical college,

      Vellore       dt.3.8.2006

A24.Discharge summary issued from Kannur Medical college

       Hospital,Anjarakandy dt.10.8.07

A25.Out patient record dt 21.9.09 issued from Taliparamba

       co.op.Hospital

A26.Payment receipt dt.16.1.06 issued from Kasturba Hospital,

       Manipal.

A27 & 28.Inpatient bills dt.10.2.06 & 5.5.06 issued from Kasturba 

       Hospital

Exhibits for the opposite party:

B1.Copy of the police intimation register

B2.Copy of the register cum wound certificate issued by Dr.Krishnan

B3.Copy of the FIR No.97/01 of Sreekandapuram Police station

B4.Copy of the stay order inCrlM.A.11612/04 in Crl.M.C.2635/04

B5 & 6.Copy of the gazette notification dt.17.6.97, 21.12.2001

B7.Copy of the extract of register of Operation maintained by 3 rd OP

B8.Copy of the operation register maintained by 3^rd Ops. From 4.8.01

       to 23/8/2001

B9.Copy of the operation register sl.200 to 241 & 43 to 132

B10.Copy of the report book of ward No. 17 & 18 for the period from

        8.5.01 to 5.7.01 page No. 94 and 95 maintained by 3^rd OP

B11.Histopathology report of complainant dt.18/8/01.

B12.Case record maintained by 3^rd OP

B13.Copy of the proceedings NO.351/01 dt.3.7.03 issued by Director,

         Academy of Medical science

Exhibits for the court

X1.Report filed by the Medical Board, Dist.Hospital, Kannur dt. 28.1.09

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite party:

DW1. Dr.V.Sunil

DW2. Dr.Gopinath

DW3.Balachandran.M.K                                               

                  /forwarded by order/

          Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.