19th day of April 2013
OP.306/04 filed on 28/2/04
Complainant: Saradha, W/o.Sankarankutty, Changaramponnath House,
Veliyannur, Thrissur.
(By Adv.A.D.Benny, Thrissur-3)
Respondents: 1. Medical Centre Trichur (P)Ltd., rep. by Managing
Director, Shornur Road, Thrissur.
(By Advs.M.F.Joseph&P.G.Anilkumar, Thrissur)
2. Dr.Justin F, Attokaran, Daya Speciality Surgical
Centre, Shornur Road, Thrissur.
(By Adv.A.R.Krishna Moorthy, Thrissur)
Amended as } 3. Managing Director, Sushrut Surgicals (P) Ltd., Sushrut
per IA .1453/08 } House, Sg/No.288 Meset to MIDC, Hinjewadi.
} (By Advs.P.Fazil,V.S.Sreejith&M.Reghu, Thrissur) } 4. Raphel, Proprietor, Dealer, Achromed Surgicals,
} Adam Bazar, Near Ambakadan kinar, Thrissur.
(By Adv.K.A.Paul, Thrissur)
O R D E R
By Smt. Padmini Sudheesh, President:
The case of complainant is that the complainant has a fall in 2000 February and got fracture to her left leg hip joint. She had approached the 2nd respondent for treatment and on the advice of him she underwent a prosthesis surgery for hip joint replacement. The 2nd respondent conducted surgery on 5/2/2000 and discharged on 15/2/2000. After six months of the surgery while walking pain was felt and had increased gradually. Then she had consulted Drs.K.P.Ramkumar and Premkumar of Thrissur Metropolitan hospital. In the examination it was revealed that because of the faulty surgery and defective material of the prosthesis, stem was broken. The said prosthesis was supplied by respondents. As the stem was broken the petitioner had undergone another surgery on 10/10/2002 and there incurred expenses of more than one lakh. Because of the defective surgery of respondents the complainant had suffered pain mentally and physically. The complainant sent a lawyer notice but of no use.
2. The complaint was amended and respondents 3 and 4 were impleaded.
3. The version of 1st respondent is that the 2nd respondent is not an employee of 1st respondent. He is doing independent practice and conducting operations in different hospitals in Thrissur. The complainant was a private patient of 2nd respondent. This respondent has provided operation theatre facilities and nursing facilities. The hospital records show that the complainant was admitted in the hospital on 3/2/2000 and has undergone operation for left hip joint. The operation was successful and she was discharged on 15/2/2000. Afterwards she has not turned up for further checkup. The statement that the operation done by 2nd respondent was defective is wrong and denied. The 1st respondent is not known from where the complainant has purchased the material. The manufacturer of material is a necessary party. The material is broken due to manufacturing defects or carelessness of complainant or may be due to fall. This respondent has no information regarding the surgery on 10/2/2002. Hence dismiss.
4. The counter averments of 2nd respondent in brief are that the complainant approached this respondent on 3/2/2000 with a transcortical fracture of her left hip bone sustained due to a fall. A detailed and thorough clinical examination and pre-operative investigations were done. On the basis of investigation transcortical fracture on left hip bone was confirmed and the complainant was advised to undergo prosthetic surgery as the proper treatment. But prosthetic surgery requires heads of different size varying from 37mm. to an increased size of 2mm in ascending order. At least a total number of 10 head prosthesis have to be kept autoclaved before the surgery. When the patient’s femoral head is taken out it is measured and suitable prosthetic head is selected from among the head is taken out it is measured and suitable prosthetic head is selected from among the heads kept at the time of surgery. It is counter checked with the acetabulum and then introduced in the femoral shaft. If the required size of head is not available from the same company it will be obtained from different companies and kept for operation. Once the prosthesis of different companies are shuffled it would be difficult to identify and say which one belongs to which company was used in a particular case. As per the practice no separate bill was issued to the patients and its charge would be included in the surgical fee. Since no company receives back the autoclaved remaining prosthesis, it would not be advisable to the complainant to purchase above ten prosthesis head so as to select the suitable one for the complainant. The hospital uses only standard prosthesis made by well renowned companies and due to the fact that prosthesis of different companies are purchased and used to suit different sizes and needs. The sincere inability of this respondent to disclose the address of the manufacturer be appreciated. The complainant was given general anesthesia. Posterior incision was used and the fracture site was exposed after identifying the sciatic nerve and keeping it isolated. . The fracture was identified and the head was extracted. The extracted head measured to select a corresponding prosthesis head. The selected prosthesis head counter checked with the cavity called acetabulum. The neck was properly shaped after cutting irregular projecting bone and reamed to proper size to suit the stem of the prosthesis. The prosthesis was introduced and housed properly then the head was reduced to acetabulam and would closed with a suction drain. Check X-ray taken found to be the head in the socket. Proper post operative care executed with a pillow in between the thighs. This is one of the standard operative procedure advocated in usual orthopaedic text book. This respondent had used good quality prosthesis with standard specification for the surgery of the complainant. The surgery was conducted with all aseptic precautions and care. She was discharged on 15/2/2000 in good position. The complainant reviewed after one month and X ray was taken which did not reveal any fracture in the prosthesis or other complication. This respondent had treated the complainant with due vigilance and care. Other averments in the complaint are denied. Hence dismiss.
5. The counter averments of 3rd respondent are that it is not aware of the reason for breakage of the prosthesis and do not wish to comment on the same in absence of any documents whatsoever. There are numerous reasons for implant failure that are not necessarily attributable to either the surgical procedure of the implant used. Among various other factors, negligence on the part of complainant to take proper post operative care such as a fall undue stresses being exerted on the hip due to strenuous physical activities etc. are also known reasons for implant failure as widely documented in literature. The allegation of defective material is false. It is denied that it has caused pain and loss to the complainant. Hence dismiss.
6. The version of 4th respondent is that there was no negligence or deficiency in service on the part of this respondent. The complainant herself purchased the prosthesis, stem from somebody else for her operation. This respondent has no knowledge from where the complainant had purchased the above materials. This respondent has not supplied any surgical article to complainant for her operation. The complainant is a stranger to this respondent and this respondent is not liable to pay any amount. The things happened only because of the negligence of complainant. The circumstance of petitioner’s case strongly point out that the factors such as falling, hitting with hard objects and exerting pressure on the hip through strenuous physical activities etc. as probable cause of fracture of prosthesis and no liability can be fastened upon this respondent. The complainant has no cause of action against this respondent. Hence dismiss.
7.Points for consideration are that :
1)Whether there was any negligent act committed by respondents 1 and 2?
2)Whether there was any deficiency in service from respondents 3 and 4?
3)Other reliefs and costs ?
8.Evidence consists of oral testimonies of PW1 and RW1, Exhibits P1 to P12 and MO1.
9.Points: The complaint is filed alleging medical negligence on the part of respondents 1 and 2. It is the case that the complainant had a fall and which resulted fracture of her left leg hip joint. Then she had approached 2nd respondent and he had advised for prosthesis surgery for hip joint replacement. Accordingly the surgery was conducted on 5/2/2000 and she was discharged on 15/2/2000. According to her after six months from the surgery while working she felt pain and consulted doctors at Metropolitan hospital, Thrissur. She would say that the examination made at the Metropolitan hospital revealed that because of the faulty surgery and defective material of prosthesis stem was broken. So she had to undergone another surgery on 10/10/2002. According to complainant because of the defective surgery conducted by 2nd respondent she was forced to undergo another surgery. She also alleging defective quality of the product which was manufactured by 3rd respondent and sold by 4th respondent.
10.The 2nd respondent filed a detailed counter in which he has elaborately stated about the procedure done to complainant. According to him there was no defect to the prosthesis fixed and there was no negligent act in conducting the surgery. According to him the alleged fracture of prosthesis occurred after a long period of about two years itself cannot be considered negligent or carelessness on the part of this respondent in conducting prosthesis surgery. He would say that it may occur due to many other factors unconnected with acts of the surgeon and quality of material used. According to him other factors are falling, hit with hard objects and exerting pressure on the hip through strenuous physical activities etc.
11.The complainant is examined as PW1 and documents and MO1 are marked. She has deposed in accordance with the averments in the complaint. It is her case in the complaint that the examination done by Dr.Ramkumar and Premkumar of Metropolitan hospital revealed that because of the faulty surgery and defective material of the prosthesis, stem was broken. So she should prove the fault in the surgery conducted by 2nd respondent. She should also prove the defect of the material. According to her the doctor told her that the stem was broken because of manufacturing defect. It is the case of 2nd respondent that MO1 was purchased by PW1. But according to her it is not so. During examination as PW1 the complainant said that defective good was used by 2nd respondent doctor. But there is not at all any evidence to show the defect of MO1. In the absence of such an evidence it can not be said that MO1 was defective. It is the case of respondent that the breakage of MO1 was due to fall or hitting etc. But these versions were denied by PW1. But there is not at all any evidence to the alleged defect of MO1. The reason for break is not proved by anybody. The complainant is alleging defect in the good, but the respondent alleging fall or hit etc. The defect if any remained disproved. So there is absence of evidence to prove the alleged manufacturing defect to MO1. Hence the claim of complainant that MO1 was defective is failed.
12. The complainant also alleging negligence on the part of 2nd respondent in conducting surgery. What is the negligence conducted by him is not stated except alleging the defect to MO1. In the complaint also it has stated that faulty surgery was conducted by 2nd respondent. But there is no expert evidence to prove the alleged negligent act committed by 2nd respondent. The medical negligence should be proved by adducing expert evidence. In the absence of expert evidence allegations are remained disproved.
13. The 2nd respondent is examined as RW1 and according to him the standard procedure was applied and there was no negligence as alleged. It is his case that if the artificial prosthesis was in low quality there is chance of breaking. But he also stated that the low quality products will not be used. According to RW1 if the artificial product is not used properly there is every chance for breaking. But there is not at all any evidence adduced by complainant to show the improper fitting and negligent act of doctor. In this circumstance the complaint is liable to be dismissed.
In the result the complaint stands dismissed.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 19th day of April 2013.
Sd/-
Padmini Sudheesh, President.
Sd/-
M.S. Sasidharan, Member.
Appendix
Complainant’s Exhibits:
Ext.P1 Copy of lawyer notice
Ext.P2 Acknowledgement letter
Ext.P3 Reply notice
Ext.P4 Reply notice dt. 15/7/2003
Ext.P5 Lr. dt. 13/10/2003
Ext.P6 Lr. dt. 25/10/2003
Ext.P7 X.ray
Ext.P8 Case sheet
Ext.P9 Discharge summary
Ext.P10 Bill
Ext.P11 Receipt
Ext.P12 Receipt
Complainant’s witness
PW1 – C.Sarada
Respondents witness
RW1 – Dr.Justin F Attokaran
MO1 - Prosthesis
Id/-
President
