O R D E R Sri. Santhosh Kesavanath P., President. Case of the petitioner filed on 19..10..2007 is as follows: Petitioner is a young active youth aged 28 years. petitioner approached the first opposite party hospital with complaints of tumor on Upper and Fibula right leg on 21..10..2005. Second opposite party examined the petitioner and directed for surgery. In pursuance of the diagnosis and medical advice petitioner had been admitted to the first opposite party hospital and the surgery was scheduled to be conducted on 22..10..2005. Petitioner was given all medications and was subjected to surgery. Surgery had been done by second opposite party and all further dressing and treatment had been done under supervision and direction of second opposite party. Even though opposite -2- parties had given a lot of medications and dressing wound of surgery was not healing, and instead the wound was profusely discharging sinus. Petitioner complied the matter to the opposite party on several occasions. Even after complaining the matter several times opposite parties did not care to take due attention and thus conditions of the wound was getting worse and worse. Without attributing due attention the petitioner had been discharged from the first opposite party hospital on 27..10..2005. With advice to come to the opposite party hospital on 1..11..2005. There was no improvement for the condition of the wound even on 1..11..2005. Even after the consultation with the second opposite party there was no progress in healing of the wound. Petitioner was gradually loosing his sensation of the right leg. Petitioner had been taken to SUT hospital, Thiruvananthapuram on 07..11..2005. Doctors of SUT hospital examined the petitioner and they found that the wound had been terribly infected and the nerves had been damaged on account of carelessness and negligence. Petitioner attribute deficiency in service rendered by the opposite parties. On account of the negligence of opposite parties sensation of the right leg of the petitioner is seriously affected and life of the petitioner was so miserable . Petitioner had been further taken to Christian Medical College at Vellore for further examination. Further investigation in the matter revealed that there is complete lesion in the right common peroneal, posterior tibial and sural nerve and the same will not be recovered. So, the petitioner claims Rs. 4,00,000/- towards compensation for the hardships sustained by the petitioner on account of deficiency in service rendered by the opposite party. Petitioner also claims costs of the proceedings. -3- First opposite party entered appearance and filed version contenting that the petition is not maintainable. According to the first opposite party they are rendering valuable services to the ailing. First opposite party is a charitable institution managed by Nuns with no profit motive. Petitioner consulted the second opposite party on 8..10..2005 with complaints of a swelling on the outer aspects of the right leg . He gave a history of having sustained injury to his right knee in the first week of September 2005, following a fall from motor bike, he was treated in Medical College Hospital, Kottayam. He was advised to have surgical removal of the tumor. Petitioner again consulted the Asst. Professor in Orthopedic surgery, at Medical College, Kottayam, for a second opinion who suggested that the bony growth in the Fibula is most probably “OSTEO CHONDROMA” and should be removed and examined by a pathologist. On examination of the right leg by the second opposite party on 8..10..2005 it was found that pain and swelling over the knee, following the fall, had almost completely subsided. There was diffuse swelling over the upper half of the right fibula bone. Petitioner come back for review on 25..10..2005 with a request to have the boney tumor removed surgically. He admitted to the first opposite party hospital on the same day. The pre operative investigation revealed that his liver enzymes were abnormally high due to consumption of alcohol regularly. The surgery was done before informing the petitioner about the possible complications and post operative recovery expected. A proper informed consent in writing was obtained from the patient and his mother before the surgery. The petitioner underwent surgery on 22..10..2005 with due precautions and -4- care. All bleeding points in the wound were secured to prevent bleeding. The right lower limb was immobilized in plaster of paris and bandage. The physician of the second opposite party saw the patient everyday for 5 days and on every occasion petitioner reported to be comfortable and has no complaints. After the post operative period the patient insisted on being discharged and thus he was discharged from 27..10..2005. Patient came for review on 1..11..2005. He made no particular complaints, the wound was noticed healed but some puss discharge were seen in some areas. The discharged fluid was taken to puss cultural and sensitivity examination in the lab and the patient was prescribed antibiotic. The biopsy report confirmed ‘OSTEOCHONDROMA’.The patient came for review on 5..11..2005. The puss culture report showed that the puss had heavy growth of E.coli bacteria and that was resist to all antibiotics except Amikacin & Chloramphenicol. Petitioner was immediately admitted to the hospital and started intervenous and antibiotic. Blood test were done, which shown increased white cell count with 95 % polymorphs along with raised ESR and CRP levels indicated an acute infection. Later patient and his mother were informed about the condition of the patient . On the next day the thorough cleaning of the wound would have, to be done to let out all the pus. In the evening around of 6 P.M on 6..11..2005 father of the petitioner demanded immediate discharge of the patient from the first opposite party to take his son elsewhere. According to 1st opposite party there was no deficiency in service on their part. First opposite party denied the averment of the petitioner with regard to opinion of the doctor’s of SUT hospital. First opposite party contented that they had given care and caution to the patient and there is no negligence or deficiency in service -5- on the part of the opposite party and they pray for dismissal of the petition with their costs. Second opposite party filed version contenting that the petition is not maintainable. Second opposite party consulted the patient on 8..10..2005 with the complaint of a swelling on the outer aspect of his right leg since few years for which he had not sought any medical or surgical consultation. Petitioner gave history of sustained injury to his knee following a fall from motor bike. Petitioner was advised by another physician of medical college, who suggested that the boney growth is “OSTOCHONDROMA”, and should be removed and examined by a pathologist. On examination on 8..10..2005 it was found that the swelling had completely subsided. There was diffuse swelling over the upper half of the fibula bone . There was no neurological or vascular deficit in the leg . Second opposite party explained detailed swelling and informed about the treatment available to the patient and his mother went home saying that they wished to think about it and report further. Patient came back for review on 21/10/05with a request to have surgical removal of bony tumor. He was admitted to first opposite party hospital on 21..10..2005. On pre operative investigation it was found that liver enzymes of petitioner is normally high due to the regular consumption of alcohol. Petitioner was told about the possible complication and post operative recovery expected. Consent is writing was obtained from the patient and his mother and the patient was underwent surgery on 22..10..2005 taking all precautions and care. All bleeding points in the wound were secured to protect post operative bleeding. The right lower limb immobilized. Physician and the second opposite party -6- saw the patient everyday for 5 days and on every occasions patient reported to be comfortable and had no complaints. Antibiotic for continuous 3 days were given following the surgery. Since the post operative period was un eventful patient insisted being discharged, he was discharged on 27..10..2005. The patient came for review on 1..11..2005. On inspection of the wound it was found that wound was healed well in the upper ¾ length but was gaping in lower ¼ with mild discharge from that area. Discharge fluid was taken for biopsy . Report confirmed clinical diagnosis of ‘OSTEOCHONDROMA’. Patient came for review on 5..11..2005. Culture and sensitive report showed growth of E-coli bacteria that was sensitive to certain antibiotics. Patient was admitted to the hospital started antibiotic and necessary blood test were on 6..11..2005 patient had high temperature. Patient and his mother were informed by second opposite party that in spite of adequate antibiotics, due to the condition of the patient, the patient would be taken in to the operation theater the next day and a thorough cleaning of the wound would have to be done. Later in the evening around 6 PM , the patient’s father demanded discharge from the first opposite party hospital immediately as he was not satisfied with the progress in the wound healing and wished to take his son elsewhere for further treatment. Patient was discharge along with all investigation report. According to the opposite party there is no negligence on their part. The treatment given by the SUT Hospital, Thiruvananthapuram was the same proposed by the second opposite party. According to 2nd opposite party the cause of infection in the wound is most probably due to the lowered systematic immunity of the patient, as he was a chronic alcoholic with liver disease. According to the second -7- opposite party there was no negligence on his part. So, he pray for dismissal of the petition with his costs. Points for determinations are: i) Whether there is deficiency in service on the part of the opposite party? ii) Relief and costs? Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A3 documents on the side of the petitioner and Ext. B1 document on the side of the opposite party. Point No. 1 The crux of the case of the petitioner is that due to the carelessness of the opposite post operative wound of the petitioner was not healed and the condition of the petitioner became terrible. In order to prove the case of the petitioner he rely on Ext. A2 document . Ext. A2 document is discharge summery of the petitioner issued from Sri. Uthradam Thirunal Hospital, Thiruvananthapuram. In Ext. A2 it is stated that during physical examination it is noted that there is profuse discharging sinus from the wound of right leg. No sensation over the right foot.. Further more arterial study of right leg. Shows that there is complete block of distal part of popliteal artery and position tibial artery. The course in the hospital is Fascitomy that means that a surgical incision in the area of fascia. Counsel for the petitioner vehemently argued that from Ext. A2 it can be seen that the service rendered by the opposite party is not proper. Treatment record of the petitioner is produced by the first opposite party and said document is marked as Ext. B1. From Ext. B1 it can be seen that the petitioner had a previous history diagnosed to be -8- ‘Ostiochondroma’, during diagnosis at Medical College Hospital, Kottayam he was advised to biopsy. The petitioner was examined on 8..10..2005 firstly and the 2nd opposite party explained to the petitioner and his mother about the chondroma. 2nd opposite party further optioned about Surgical Excision & biopsy or leave alone and to watch about progress. Petitioner leave from the first opposite party hospital for thinking about the course suggested by the second opposite party. On 21..10..2005 petitioner was examined and admitted in the hospital for a surgery. Surgery was conducted on 22..10..2005. On 1..11..2005 after 10 days of post operative surgery petitioner was again examined by the second opposite party. On examination it was find that there is no touch sensation. Pus discharge was sent for biopsy. Clinical examination was done. On 5..11..2005 E-coli bacteria were seen and antibiotic were given to the patient. Petitioner has not adduced any evidence to prove that opposite party had omitted to do something which he ought to have done or has done something which a reasonable man ought to have done. Negligence in the contest of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in a particular doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, and error of a judgment or accident, is not proof of negligence in the case of a medical professional. So, long as a doctor follows a practice acceptable to medical professional of that day, he cannot be liable for negligence. It is un justified to impose on those engaged in medical treatment an un due degree of additional stress and anxiety in the conduct of their profession. Which expectations from the professional must be -9- realistic and expected standard attainable, this implies recognition of the nature of the ordinary human error and human limitation in performance of complex task. The liability is restricted to those cases were there is a real failure to behave as a reasonably competent practitioner would have behaved. An appropriate raising of the standard of case would threaten balance (Jacob Mathew Vs. State of Punjab & Anr. reported in 2005 CPJ) Applying Bolam test which is still holds as basis for adjudication of medical negligence. We would not find any prima facie case of medical negligence on the part of the opposite party. point No. 1 is found accordingly. Point No. 2 In view of finding in point No. 1, petition is dismissed. Considering the facts and circumstances of the case no cost is ordered. Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 30th day of July, 2010. Sri. Santhosh Kesavanath P. President Sd/- Smt. Bindhu M. Thomas, Member Sd/- Sri. K.N Radhakrishnan, Member Sd/- APPENDIX Document for the petitioner Ext. A1: Discharge report from S.H Medical Centre Ext. A2: Discharge summary from SUT Hospital, Thiruvananthapuram. Ext. A3: Report from CMC Hospital Documents for the Opposite party Ext. B1: Statement record of Pratheep Varghese in S.H. Medical Centre, Kottaym.
| | HONORABLE Bindhu M Thomas, Member | HONORABLE Santhosh Kesava Nath P, PRESIDENT | HONORABLE K.N Radhakrishnan, Member | | 
