By Smt. C. S. Sulekha Beevi, President,

1. This is a case alleging medical negligence against opposite parties. The complaint is preferred through the father of the complainant Naseema who was a mior at the time of instituting the complaint. On 30-7-2008, a petition I.A.337/08 was filed stating that the Naseema has attained majority and to record her majority. This petition was allowed and majority was recorded.

2. Naseema, who undertook the treatment under opposite parties is hereafter mentioned as patient. It is the case of the patient that on 16-01-2003 her little finger hit against the study table chipping the tip of the nail slightly. She herself removed the chipped nail. Though there was much pain she endured it. The next day there was swelling and pain. This increased while attending the school on 18-01-2003. In the evening she told about it to her mother. She along with her mother came to first opposite party hospital. From the casualty they were advised to see second opposite party doctor. They consulted second opposite party doctor assuming that she is a specialist. Second opposite party examined the wound by pressing and causing good pain. Rs.150/- was collected towards fees and medicines. When the patient's mother complained stating that the charges are high they were told that it was because second opposite party doctor is a specialist. There was no relief to the pain and swelling of the wound so the patient and her mother approached first opposite party again on 23-01-2003. At the counter they were advised to see second opposite party again. After examining the wound second opposite party suggested that the problem would be solved if the nail is removed. On assurances of second opposite party the patient's mother consented for the same. Second opposite party doctor gave one injection each to the patient on her shoulder and upon the finger. She was advised to come for dressing the next day. Before giving the injections, the patient's mother suggested that she would purchase a new syringe and needles for the injections. But the request was turned down by second opposite party who told that only clean and sterile syringes and needles are used. It is alleged that the syringes were taken from inside the casualty and that they were not new. Second opposite party had prescribed medicines and patient's mother had paid Rs.210/- on this day. On 24-01-2003 patient went for dressing and after examining the wound second opposite party doctor suggested that the wound is showing signs of healing. Patient went for daily dressing and first opposite party collected Rs.30/- as dressing charges. That no bills were issued. That while removing the bandage at the hospital it was noticed by the patient's mother that the finger had blue colour, with swelling and loss of sensation and there was no relief after the treatment. So the patient's mother informed her father Parayil Ali about this. On 27-01-2003 the patient along with her mother and maternal grandfather Parayil Ali came to the hospital and discussed the situation with second opposite party doctor. Parayil Ali talked in slight unpleasant manner and insisted to consult a surgeon. On the same day complainant consulted Dr. Mathew who is a Surgeon attached to first opposite party hospital. After examining the wound the surgeon called for the case records and talked to second opposite party doctor in grave and angry manner. The surgeon checked the finger and there was no sensation on the finger. The surgeon advised to discontinue the medicines prescribed by second opposite party doctor and prescribed new medicines. That the surgeon had directed second opposite party to clean and dress the wound daily without collecting any fees. Patient's mother and grandfather informed the situation to the patient's father, Noorudheen who was abroad. He understood that there was chance that the finger had to be amputed and availed leave without wages and reached India on 06-2-2003 on his own expenses. The patient was then seen by Dr. Anwar and Dr. Nazar. They referred the patient to Baby Memorial Hospital, Calicut. Patient was admitted in Baby Memorial Hospital on 10-2-2003. It is stated that the doctors there opined why the patient and relatives did not insist to use new syringes for the injections. On 12-02-2003 while the patient was in the company of her mother, father and paternal grandmother, the doctor told that amputation of the finger was necessary and unavoidable. Hearing this the paternal grandmother fell sick and became paralysed. She is even now totally bedridden. The right little finger of the patient was disarticulated/amputed. That this was caused only due to the negligence committed by second opposite party doctor by using unsterile syringe for injection. Hence this complaint alleging medical negligence.

3. Both opposite parties filed separate versions denying the allegation of medical negligence. It is admitted that the daughter of the complainant, Naseema, 14 year old minor girl was brought to first opposite party hospital on 181-01-2003 with injection of nail and nail bed. She was seen by the second opposite party on the same day and prescribed antibiotics, analgesic and glycerine magsulf for local application and asked to review. Three days later she again came to first opposite party hospital and consulted the second opposite party and at that time infection was spreading with partial separation of the nail. So after explaining the condition to her mother and getting her consent the second opposite party removed her nail under all asceptic precautions and with due care. Second opposite party had used new sterile disposable syringes and needles for giving injection. There is no practice in the first opposite party hospital to use non-disposable syringes and used needles for injection. The little finger of the patient's right hand suffered hit against study table on 16-01-2003 evening and the patient added to the injury by tearing off the tip of the nail by herself and that she was suffering pain. That welling had increased the next day. The pain and swelling increased while the patient was attending school on 18-01-2003 and the patient came to first opposite party hospital casualty only in the evening of 18-01-2003. That the injury was infected and was two days old when the patient first came to the hospital. At this point of time second opposite party did all that is necessary to control the infection viz., antibiotics, analgesics, injection T.T., proper wound care and advice for follow up. No assurance of complete cure or that the wound would be cured in 5 days was given. Opposite party denies that on 23-01-2003 the patient showed the prescription at the counter and was asked to see second opposite party again. On 23-01-2003 on examining the wound it was found to have spreading of infection and partial separation of nail. The patient's relatives were told about the infection and partial separation of nail. They were advised and informed about the necessity for nail removal. Proper consent was taken. Nail removal was done under local anesthesia using sterile instruments and taking all aseptic precautions and proper care. There was no assurance given that after nail removal the problem would be over.

4. The allegation that patient's mother offered to buy new syringes but second opposite party told her that even more clean and sterilized material are used and that second opposite party administered the injection with syringes and needles which are not new is denied as false. The use of new syringes are recorded in the prescription (op ticket) issued to the patient. That this prescription is with the complainant. The allegation that when the patient came on 24-01-2003 for dressing of the wound the patient and her mother was told that the wound is healing is denied as false. The further allegation that patient reported for daily dressing there after and Rs.30/- was collected as charges is also denied. The patient reported with worsened injury and she was shown to the surgeon and necessary treatment was given. On 25^th and 26^th the patient reviewed with opposite party hospital and thereafter was lost to follow up for 12 days. The allegation that the after examining the patient the Surgeon called for the prescription and talked angrily to second opposite party doctor etc. are denied as false. That the out patient ticket was with the patient and as she was treated as out patient only. There are no case sheet kept in opposite party hospital. The prescription was handed over to the patient after every consultation. The surgeon had examined the patient on 24-01-2003 and prescribed new antibiotics and advised to continue wound care. The patient was examined by Surgeon as per reference by second opposite party and not on the insistence of the patient's grand father Parayil Ali. The other allegations are denied as false. That proper bills were issued for the charges paid. That opposite parties have not misled by pretending as a specialist for the patient's ailment. That second opposite party is a qualified gynecologist and is qualified to give necessary treatment by way of her general qualification of M.B.B.S. She had also referred the patient to a Surgeon at the appropriate time. There is no inadequacy, mistake, unlawful action without professional ethics on the part of opposite parties. The allegation that the doctor who treated at Baby Memorial Hospital opined that there was mistake caused by use of unsterile needle and syringe is denied as false. The allegation that the father of the patient came to native place and extended his return trip to 14-3-2003 and incurred huge expenses and monetary loss on this reason is denied having no connection with the facts of this case. The further allegation that the mother of the complainant became paralysed on hearing the matters etc. is denied having no nexus with the case alleged. That complainant is trying to convert the disease if any of his old mother to a windfall by attributing negligence upon opposite parties. The amount claimed is exaggerated, too remote and claimed without any basis. The complaint is frivolous and vexatious.

5. Second opposite party has filed version adopting almost all the above contentions with details explaining the treatment rendered to the patient. Prior to filing of the version, a petition was filed by opposite parties seeking direction against the complainant to produce the out patient ticket issued to the patient. It was submitted in the petition that opposite parties were not able to reply upon the dates and details of treatment rendered without perusing the out patient ticket, as the patient was treated only as out patient and not as inpatient. To this petition an affidavit was filed by the mother of the patient affirming that no out patient ticket was issued and whatever treatment records she had has been taken by the father of the patient while going abroad to enquire about specilized treatment. After filing the version on 11-8-2003, second opposite party field I.A.240/03 seeking amendment of the version in regard to the mistakes committed while quoting the dates of treating the patient. The version was amended to this effect and amended version is placed as part of records.

6. Evidence consists of the oral evidence of PW1 to PW5 examined on the side of complainant and Exts.A1 to A10 marked for complainant. Second opposite party was examined as DW1 and no documents marked for opposite parties.

7. Points for consideration:-

(i) Whether opposite parties are deficient in service.

(ii) If so, reliefs and costs.

8. Point (i):-

To avoid repetition the facts are not narrated again. The sum of the allegation of medical negligence levelled against opposite parties are the following:-

a) That second opposite party doctor is not qualified to handle the ailment presented by the patient, Naseema. That second opposite party misled the patient's mother and her relatives by pretending to be a specialist to undertake the case of the patient. That being a gynecologist second opposite party doctor should not have undertaken to treat the patient or do the procedure of nail removal by giving local anesthesia by digital blocking.

b) That for doing the procedure of nail removal, the patient was given injection of Tetanus toxoid on the shoulder and also injection for local anaesthesia. That second opposite party doctor did not use sterile disposable new syringes and needles. This caused infection to the little finger on which local anesthesia was done and it developed to gangrene and the finger had to be amputed later at Baby Memorial Hospital.

9. Denying these allegations,t he submissions made on behalf of opposite parties are the following:-

a) That second opposite party has not misled the patient, her mother or her relatives by pretending to be a specialist for the ailment suffered by the patient. That second opposite party is a qualified gynecologist. That second opposite party is qualified to undertake and treat the ailment presented by the patient by way of her general qualification viz. M.B.B.S. That when second opposite party found that the wound was not responding to standard treatment and was getting worse, at the appropriate time, second opposite party had referred the patient to a surgeon. That the procedure of nail removal and giving local anesthesia by digital blocking can be done by any doctor with M.B.B.S. Degree and that nail removal is not a case to be undertaken by Surgeon and Anesthesist only.

b) That for nail removal second opposite party had given one injection of Tetanus Toxoid on the shoulder of the patient and another injection on the finger/digit for injecting the local anesthetic drug which is digital blocking. That only new sterile disposable needles and syringes were used for these injections. That there is no practice in first opposite party hospital to use unsterile or used needles and syringes for injections. That second opposite party had prescribed to purchase two new syringes which was noted by second opposite party in the prescription issued to the patient. That nail removal was done under local anaesthesia, using sterile instruments and taking all aseptic precautions and proepr care. That the little finger of the patient was already infected, when the patient consulted second opposite party for the first time. The wound and infection was then two days old without seeking any medical attention. The infection had progressed without response to the standard treatment measures adopted by second opposite party doctor. That second opposite party doctor had promptly arranged for consultation with Surgeon on 27-01-2003, when the patient's wound was found to have worsened. The amputation/disarticulation of finger if done was the result of the progression of infection. The patient, Naseema had neglected the advice of second opposite party to follow up regularly. Moreover, there is unexplained delay of two weeks in between the treatment taken at first opposite party hospital and the date of availing treatment at Baby Memorial Hospital. That this delay and carelessness in not giving proper attention to the wound is enough to aggravate the infection. That second opposite party had given appropriate treatment and proper care at each stage of the illness of the patient and that there is no medical deficiency.

10. Upon the above submissions the foremost question that arises for analysation is whether second opposite party doctor has tresspassed into a prohibited field by undertaking to treat the ailment of the patient, and whether guilty of committing negligence.

11. A doctor while undertaking a case, holds himself out to possess knowledge and skill sufficient to render necessary treatment. It is widely recognized proposition of law that a doctor will be guilty of negligence, if he undertakes a task which he knows, or ought to know that he is not qualified to perform. Thus a doctor is bound by the primary duty of care in deciding whether he should undertake the case.

12. It is contended on behalf of complainant that second opposite party is gynecologist and is therefore unqualified and incompetent to perform the procedure of nail removal by doing digital blocking/local anesthesia. It is the case of complainant that such procedure can be done only by a Surgeon and Anesthesist.

13. This contention is countenanced by opposite parties by submitting that though second opposite party has specialised in the field of gynecology, she has undertaken and treated the case of the patient herein by virtue of her basic degree in Medicine and Surgery viz., M.B.B.S. That digital blocking by giving local anesthesia can be done by a general practitioner who possesses M.B.B.S. Degree. That it is not a procedure that can be done only by Surgeon and Anesthesist.

14. Undisputedly second opposite party has done her post graduation in Gynecology and Obstetrics after graduating in Medicine and Surgery. ie., M.B.B.S. According to complainant being a gynecologist second opposite party is unqualified and incompetent to do nail removal by giving local anesthesia. The evidence of PW4 and PW5 is noteworthy in this regard. PW4 is Dr. C.R. Mohamed Anwar who is an ophthalmologist who has seen the patient subsequently and has issued Ext.A7 prescription. In Ext.A7 dated, 09-2-2003 the doctor has noted as under:

“H/D Nail removal from local hospital under local anesthesia (right little finger) two weeks back.

O/E little finger (Rt) is swollen, local tenderness +, Bluish discoloration on the outer side of finger suggestive of impending gangrene. Advised surgical consultation for future management.”

15. The complainant was admitted and treated in baby Memorial Hospital on the next day onwards from where her finger was later amputed.

In chief examination PW4 has deposed as under:

“Finger nail removal under digital block എന്ന് Ext.A9-ല്‍ എഴുതിയിട്ടുണ്ട്. Digit എന്നു പറഞ്ഞാല്‍ finger ആണ്. രണ്ടു ഭാഗത്തും (താഴെ ഭാഗത്ത് digital area-യില്‍ anesthesia നല്‍കി തരിപ്പിക്കുന്നതിന്നാണ് digital block എന്നു പറയുന്നത്. Dr. Rini Salas gynecologist ആണ്. Digital block എന്നുളള രൂപത്തില്‍ gynecology department-ല്‍ anesthesia നല്‍കി മരവിപ്പിക്കാറില്ല.“

“ഞാന്‍ കാണുംപോള്‍ പരാതിക്കാരിക്ക് bluish discoloration ഉണ്ടായിരുന്നു. അത് gangrene-ന്‍െറ sign ആണ്. ആ സമയത്ത് ഒന്നുകില്‍ medically manage ചെയ്യണം അല്ലെങ്കില്‍ surgically manage ചെയ്യണം. Infection കൊണ്ടാവാം ഇങ്ങനെ ഉണ്ടായത്എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. Proper dressing ഇല്ലാത്തതു കൊണ്ടോ disposable syringe അല്ലാതെ properly sterilize ചെയ്യാത്ത syringe ഉപയോഗിച്ചതു കൊണ്ടോ ഇപ്രകാരം infection ഉണ്ടാവാം. സാധാരണ ഗതിയില്‍ digital block gynecology-യില്‍ ആവശ്യം വരുന്നില്ല. digital block-ന്ന് expertise ആവശ്യമാണ്.“

In cross examination PW4 has stated as follows:

“For M.B.B.S. Course generally doctors study all the branches of the medical science. I would agree that an M.B.B.S. Doctor is competent to treat a patient with the condition presented by complainant to opposite party No.2. I am not aware of the professional experience second opposite party has I have studied gynecology.”

16. PW4 has categorically testified that a doctor who holds M.B.B.S. Degree is competent to treat a patient with the condition/ailment presented by the patient in this case. It is also spoken by PW4 that he is a family friend of the patient's father, Noorudheen and that he was asked to appear as a witness by Noorudheen.

17. The complainant was treated at Baby memorial Hospital from 10-2-2003 to 24-2-2003 under the care of Dr. C.C. Suresh who was examined as PW5. The evidence of PW5 regarding the competency of an M.B.B.S. Doctor to do digital blocking and nail removal is as under:

“I agree that there are different methods of giving anesthesia like spinal, general, local etc. Digital block anesthesia is also an accepted method of local anesthesia. I agree that any M.B.B.S. Doctor can do it.”

18. The above evidence of PW4 and PW5 who are specialists would establish that a doctor who holds an M.B.B.S. Degree is qualified and competent to undertake the treatment of the ailment presented by the patient Naseema. Only because a doctor has post graduated in a particular field it cannot be concluded that the doctor cannot treat a case which he could have treated with his basic qualification as a doctor. It would be wrong to hold that after obtaining post graduation degree, a doctor should not undertake any case that can be treated by an M.B.B.S. Doctor. If that be so, if a doctor obtains post graduate degree in any non-clinical subject, the doctor would have to be considered to be incompetent and unqualified to treat any medical case. The purpose of doing post graduation is only to gain expertise in a particular field. Post graduation does not take away the skill and knowledge already possessed by an M.B.B.S. Degree. The evidence of PW2 would go to establish that she very well knew that second opposite party is a gynecologist. The evidence of PW2 in this regard is as under:

“എന്‍െറ വീട്ടില്‍ ആര്‍ക്കെങ്കിലും അസുഖം വന്നാല്‍ സാധാരണ എതൃകക്ഷി ആശുപത്രിയിലാണ് പോകാറുളളത്. 2- എതൃകക്ഷി യെ നേരത്തെ തന്നെപരിചയമുണ്ട്. 18- തീയതി ചെന്നപ്പോള്‍ 1- എതൃകക്ഷി Dr. Moideenkutty ഇല്ല. എനിക്ക് Savera ആശുപത്രിയിലെ Dr. Moideenkutty-യെ അറിയാം. അദ്ദേഹമാണ് Savera ആശുപത്രിയുടെ ഉടമസ്ഥന്‍ ‍. മുന്‍കൂട്ടി പരിചയമുളളതുകൊണ്ടാണ് 2- എതൃകക്ഷി യെ കാണിച്ചത് എന്നു പറഞ്ഞാല്‍ specialist ആയതുകൊണ്ടാണ്. 2- എതൃകക്ഷി gynaecologist ആണ് എന്നറിയാം.“

PW1 has deposed as under:

“സാധാരണ എന്‍െറ വീട്ടിലുളളവര്‍ അസുഖം വന്നാല്‍ എതൃകക്ഷി ആശുപത്രിയില്‍ തന്നെയാണ് പോകാറുളളത്. എതൃകക്ഷി hospital-ലിലെ doctor-മാരെ അറിയാം. 2- എതൃകക്ഷി gynaecologist ആണെന്ന് പിന്നീട് പറഞ്ഞു. 2- എതൃകക്ഷി യുടെ മുറിയുടെ മുന്‍പില്‍ gynecologist എന്നുളള board ഉണ്ടോ എന്ന് നോക്കിയിട്ടില്ല.“

These evidences of PW1 and PW2 would prove that second opposite party has not misled the patient, her mother or relatives in any manner. On these grounds we hold that second opposite party doctor is fully competent and qualified to undertake the case of the patient herein and that there is no medical deficiency on this count.

19. The other main allegation is that second opposite party doctor injected, tetanus toxoid and local anesthetic drug with unsterile and used needles and syringes. That due to this the finger got infected and developed gangrene and had to be amputed.

20. The tetanus toxoid injection was admittedly given on the shoulder of the patient. There is no case that there was any infection on the shoulder, at the site where T.T. Injection was given. It is the grievance of the complainant that due the use of unsterile needle for digital blocking, the finger became infected.

21. This allegation is controverted by opposite parties contending that there is no practice of reusing needles and syringes at first opposite party hospital. That on 23-01-2003 the patient was advised to purchase two new disposable syringes for giving the injections. That this advice was noted in the prescription issued to the patient and that second opposite party doctor has used only new needles and syringes for the injections. Ext.A9 is the prescription issued by second opposite party. In Ext.A9 it is seen that on 23-01-2003, second opposite party has prescribed to purchase two 2 cc syringes. This substantiates the consistent case put forward by second opposite party that she had used only new syringes and needles for the injections.

22. At this juncture, we have to state that Ext.A9 prescription was in the custody of the complainant after the treatment at first opposite party hospital and was produced only at the fag end of the trial. Admittedly the patient was treated as out patient only and Ext.A9 prescription is the vital document which would show the details of treatment at first opposite party hospital. After receiving copy of the consumer complaint in this case, a petition I.A.148/2003 was filed by opposite parties seeking a direction against the complainant to produce the prescription before the Forum contending that the details of treatment rendered are not available for opposite parties to facilitate the filing of version in the case. To this petition, the mother of the patient filed affidavit stating that no out patient ticket was issued to the patient and that the treatment documents are taken abroad by the father, Noorudheen who is working abroad and is in his custody. Thus opposite parties had filed the version without being able to peruse the out patient prescription which was later produced and marked as Ext.A9. Thus the dates on which the patient was treated at first opposite party hospital hospital to be mistakenly quoted in the version. This reply version was later amended and errors rectified as per orders in amendment application I.A.240/03 filed by opposite parties. The cross examination of DW1 was mainly surrounding these errors in date of treatment stated in the version and as seen in Ext.A9. When a patient is treated as out patient the details of treatment are usually noted in the prescription. The error committed by opposite parties in quoting the dates of treatment in version without perusing the prescription is understandable. But the defense raised by opposite parties that only new syringes were used for the injections and that second opposite party had prescribed to purchase new syringes is consistant. This defense is substantiated by Ext.A9 prescription in which it is seen that second opposite party doctor has prescribed to purchase two syringes. Ext.A9 undoubtedly establish that second opposite party has not committed any negligence of injecting with unsterile and used needles and syringes.

23. Apart from this, it is submitted by opposite parties that the infection on the finger was snot caused due to the digital blocking. That the finger was infected and the wound and infection was already two days old when second opposite party saw the patient for the first time. That the little finger of the patient's right hand had hit against the study table on 16-01-2003 evening and the patient herself added to the injury by tearing the tip of the nail. The patient approached first opposite party hospital only on 18-01-2003. On this day second opposite party doctor has noted in Ext.A9 prescription as under:

“Infected nail and nail bed. Sub ungul infection + + +”.

After examining th wound second opposite party prescribed antibiotics and analgestics. The patient then came on 23-01-2003 when nail removal was done. The patient then was seen on 24-01-2003 as per Ext.A9. She came for dressing and antibiotics earlier prescribed for 3 days on 23-01-2003 was extended for two days more. The patient then came on 27-01-2003. On examination second opposite party found that the infection was getting worse and not responding to standard treatment. Second oppsoite party has referred tot he surgeon attached to the same hospital. The surgeon examined the patient on 27-01-2003 and prescribed medicines. Thereafter patient has not approached first opposite party hospital or second opposite party doctor or the surgeon for treatment. The patient was admitted in Baby Memorial Hospital only on 10-2-2003. The patient has not explained what was the treatment taken by her during the two weeks prior to admission at Baby memorial Hospital. It is contended by opposite party that this unexplained delay and leaving an infected wound without proper care can aggravate the infection to develop gangrene. That the complication of the

infection was due to the negligence on the part of patient herself. This argument is not without force. The evidence of PW4 in this regard is as under:

“I agree that infection if aggravated can cause gangrene. I have not verified whether she had followed the treatment suggested by surgeon. As per ext.Ext.A9 the medicines prescribed are novaclox 500mg. Which is an antibiotic to control infection and glycerine magsul for oedema and removing sluff is prescribed. It is seen prescribed for three days. At the time of observation of opposite party No.2 Dr. Rini Salas has written infected nail, and nail bud, sub-ungual infection 3+ is noted. This means that there was severe infection a the time of consultation of 2^nd opposite party itself. The medicines prescribed in Ext.A9 are appropriate medicines to be prescribed in such identical medical situation. On 23-01-2003 it is seen written T.T. Which means Tetanus Toxide. Two C.C. Syringe two is also seen written. I do not fully agree to the suggestion that this means two disposable syringes because the word disposable is not noted. Roxetin 150 is another antibiotic seen prescribed in Ext.A9. This might have been prescribed due to the inaction of the earlier antibiotic. In Ext.A9 the surgeon has written on 27-01-2003 that there is no distal vascular deficit. I agree to the suggestion that this means there is blood circulation upto the tip of the finger. The medicine further prescribed is Augmentain which is also a strong antibiotic. Trendal 400 is prescribed for improving blood supply. Dicer is prescribed to reduce inflammatory effect. The fourth medicine is Rantac. Th above medicines are prescribed for 5 days. After 27-01-2003 no review date is seen in Ext.A9. All these medicines are usually advised by doctors in such condition. I do not think I have told the complainant that it was mistake occurred at the time of injection. I do not think I have told that it was due to the excess medicine of local anesthesia. Witness adds I have not told the complainant's father like that. I am a family friend of father of complainant, Sri. Noorudheen. He asked me to appear as a witness on the side of complainant. I agree to the suggestion that infection can be caused due to a number of reasons. I cannot ascertain the accurate reason for the infection in this case. In the normal case, antibiotics are prescribed for infection. After completion of the course prescribed it is correct to say that the patient has to review with the doctor. I agree that different medicines have different impact on different persons. It is correct to say that antibiotics do not give the expected result always If medical management by conservative method is failed such patients are referred for surgical management.”

The evidence of PW5 in this regard is as follows:

“ The medicines seen prescribed in Ext.A9 are antibiotics to control infection. Trendal is a medcine to improve blood supply. It is correct that the medicines prescribed in Ext.A9 are proper medicines to be prescribed in the identical situations. It is also seen in Ext.A9 that 2cc 2 syringes are also prescribed. I agree that infections can be due to a number of reasons. It is correct that delay in treatment may cause aggravation of infection. I agree that non-compliance of the orders of the doctor can aggravate infection. Sometimes the organisms may not respond to the usual conventional antibiotics given. The patient's resistance is also an important factor. If the patient has low resistance there may be slow recovery. The impact of a medicine can vary from person to person. Self removal of nail or portion of nail can also cause infection. In Ext.A9 on 18-01-2002 it is noted that infected nail and nail bud, subungul infection + + +. The three plus indicates gross infection. It is correct to say that infection and healing are the two options in the case of a wound. In this specific case I cannot say what is the cause of infection. Carelessness of the patient in taking drugs and non- caring of the wound may aggravate infection.”

24. The evidence of the above two expert doctors makes the case put forward by opposite parties more probable. According to the evidence of experts it is proved that second opposite party is qualified to undertake the treatment of the patient and the treatment rendered was proper and correct and is as accepted in medical practice. It is established by Ext.A9 supported by expert evidence of PW4 and PW5 that second opposite party has given the standard treatment as would have been given by any doctor in identical situation. She had referred to an expert Surgeon at the appropriate time. Unfortunately the infection got aggravated and resulted in amputation of the finger.

25. The ratio of Bolam's case is that it is enough for the opposite parties to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that the respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge.

26. The upshot of the above discussions is that we do not find any medical deficiency on the part of opposite parties from the evidence, materials on record and principles of law laid. We find that opposite parties are not deficient in service.

27. In the result we dismiss the complaint. No order as to costs.

Dated this 27th day of May, 2010.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1 to PW5

PW1 : Naseema, complainant.

PW2 : P. Safiya, complainant's mother.

PW3 : P.U. Noorudheen, complainant's father.

PW4 : Dr. C. R. Mohamed Anwar M.B.B.S. MD., DOMS. FSASMS.

PW5 : Dr. C.C. Suresh, Chief Surgeon, Baby Memorial Hospital, Calicut.

Documents marked on the side of the complainant : Ext.A1 to A10

Ext.A1 : Photo copy of the passport of P.U. Noorudheen, complainant's father.

Ext.A2 : Photo copy of the Air Ticket of P.U. Noorudheen, complainant's father.

Ext.A3 : Photo copy of the Hospital records of complainant from Baby Memorial Hospital, Kozhikode.

Ext.A4 : Photo copy of the Discharge Summary dated, 24-02-03 from Baby Memorial Hospital, Kozhikode.

Ext.A5 : Photo copy of the certificate dated, 24-02-03 given by Dr.C.C.Suresh,MS., Chief Consultant Surgeon, Medical College, Calicut.

Ext.A6 : Photo copy of the prescription dated, 10-02-03 from Tirur Nursing Home, Tirur.

Ext.A7 : Photo copy of the prescription dated, 09-2-2003 by Dr. C.R. Mohammed Anwar.

Ext.A8 : Photo copy of the Certificate dated, 24-02-03 given by Dr. C.C. Suresh, MS.,

Baby Memorial Hospital, Kozhikode.

Ext.A9 : Prescription dated, 18-01-02 by second opposite party.

Ext.A10 : Prescription dated, 21-3-03 from Baby Memorial Hospital, Kozhikode.

Witness examined on the side of the opposite parties : DW1

DW1 : Dr. Riny Salas, 2^nd opposite party.

Documents marked on the side of the opposite parties : Nil

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER