PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day October 2012
Filed on : 25-08-2009
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 456/2009
Between
B.K. Thambi, : Complainant
Banglave Parambil, (By Adv. A.T. Anil Kumar
N. Vymeethi, Eroor. Amulya Street, Banerji
Road, Kochi-18)
And
1. M/s. Vijayakumara Menon Hospital, : Opposite parties
North Fort Gate, (By Adv. George Cherian
Thripunithura, Karippaparambil,
rep. by its proprietor, Dr. Bharathan. Karippaparamibil Associates,
2. Dr. R. Venugopal, MS (Ortho), HB.48, Panampilly Nagar,
Consultant Ortho peadecian Surgeon, Kochi-682 036)
VKM Hospital, Thripunithura.
O R D E R
Paul Gomez, Member.
The complaint is caused by the following facts:
The complainant met with an accident in Tamil Nadu and his left thigh borne was fractured. He was admitted in the 1st opposite party hospital and was treated by 2nd opposite party Ortho Paedician. He conducted surgery and inserted a rod to set right the fracture and some screws were used for the purpose. But the procedure proved to be a failure and it was found that the steel rod was broken into two. Again operation was done and this time, the fractured parts joined properly. According to the complainant, the second operation was necessitated due to the negligent manner in which the first operation was performed. Inferior quality steel rod was used and sufficient number of screws were not used. Hence complainant is seeking various reliefs in the complaint.
2. Joint version was filed by opposite parties. They deny the allegation that the second surgery was caused due to ;the negligence in conducting the 1st surgery. The first surgery was conducted by standard procedure. The fracture was fixed using a 14 hole dynamic ;hip screw, plating system as per the technique described in AO manual of Ortho Paedics. The steel road used as implant is manufactured by INOR Ortho Paedic company, which is standard company having requisite certification from authorities. Screws were avoided at the fracture sites to promote blood supply to the spot. Hence it is urged that there is no deficiency in service and therefore the complaint deserves dismissed.
3. Witness for complainant was examined as PW1. Exts. X1 to X4 were marked. Complainant was examined as PW2. Exts. A1, A2 and C1 marked. 2nd opposite party was examined as DW1. Witness for opposite parties was examined as DW2. Exts. B1 to B4 marked. Learned counsel appearing for parties were heard.
4. The following points deserve our attention.
i. Whether sufficient No. of screws were used?
ii. Whether the implant used was of standard quality?
iii. What are reliefs, if any
5. This complaint is addressed against the purported negligence and deficiency in service on the opposite parties in performing the impugned surgical procedure which was necessitated by an accident that occurred in the State of Tamil Nadu badly fracturing his thigh borne. The complainant is pointing his accusing finger mainly against the 2nd opposite party who had actually carried out the surgery. He pinpoints the fact in omission to use sufficient number of screws at the site of fracture. Had sufficient number of screws been used, this fiasco could have been averted, he maintains. 2nd opposite party replied that screws were deliberately avoided to promote vascularity at the site of fracture which would hasten the rejoining of the broken bones. Whether standard procedure had been followed in the impugned surgery is the most important question in this context. We think it would be profitable for us to turn to the depositions and opinions of the medical experts who have assisted very much the Forum to render a just decision. Initially, the records have been referred to the opinion of Dr. Bijy K.P. who has submitted a valuable report before the Forum where the learned doctor has stated in the last para of her report that “ Therefore I am of the opinion that B.K. Thambi’ who sustained communited fracture ----- was managed surgically ……. As per the 1st post operative X-ray fixation and reduction was adequate………. There is no evidence of negligence during the management”. In the same report her answer to the question, “Whether during the 1st operation steel rod and joining screws were properly fixed”, she has answered,” plate and screws are fixed properly as far as the fracture is concerned”. To the pointed question, “Whether there was any negligence during the time of 1st operation, she has categorically stated, there was no negligence during the time of 1st operation. She has categorically stated, “There was no negligence during the 1st operation “when the same doctor was in the dock she has ruled out the advisability of bone grafting that ought to have been done initially. Also she has replied to the suggestion that in Ext. X2 fractured bones were not properly fixed, that it was “adequately fixed”. Thus in our opinion, with this expert opinion, the first limb of the allegation that adequate number of screws were not used at the site falls to ground. Another expert, Dr. C.Cherian Kovoor also was examined as DW2. He has deposed that “in all fractures it is important to preserve as far as possible the vascularity of the borne fragments”. He has expressed the view that if vascularity is impeded, that may lead to delayed union or non-union. The doctor has also answered in the affirmative to the question, “Do you agree that from X2 X-ray, it is evident that the surgeon has used sufficient screws for adequate fixation of the facture and also expressed the view that “the surgeon in this case has taken reasonable care in the treatment” of the patient and that the treatment given to the patient is standard treatment”. This opinion of the expert in the field of Ortho Paedics for the last twenty years cannot be over looked. We think that expert opinion is the last nail driven into the case of the complainant that the adequate number of screws were not used at the fracture site. Consequently, the first contention looks devoid of any merit.
6. Point No. ii. The 2nd limb of allegation is with regard to inferior quality of implant used for fixation of the fractured bones . The representative of Inor company which is the manufacturer of the implant in question has been examined in the Forum as DW3. He has produced certain certificates issued by authorities in connection with the manufacture of implants. They are marked as Ext. B2-B4. Even though he claimed that Ext. B2 is issued from ISO, we have on verification, only conclude that the same has been issued by “Zenith” a private agency for assessment of quality , Ext. B3 is the certificate issued from an institute in Czech Republic, Lastly, Exht B4, which has been issued from Maharashtra Government is a license permitting ‘M/s. INOR to make Medical products listed in the Annexure. On close perusal of these documents it is crystal clear that the company is wanting in proper certification of quality control by the authorized bodies. We are at a loss to appreciate authenticity of these authorities to vouche for the quality of the products manufactured by the company. The only public authority, among these bodies, is the Government of Maharashtra, but we hasten to add that the certificate issued by the Government does not stand warranty to the quality of the products. On the other hand it is only a license for the production of certain goods. Those products have to pass the test of quality control later, it is presumed As a consequence, we do not think that the said company can feel themselves satisfied that they have produced the requisite certificates in relation to quality control.
It is to be noticed that implant has broken after approximately three months since the date of operation. On taking X-ray it could be found that the implant has been broken into two pieces. The patient complained of pain because, as soon as the steel plate was broken, the alignment was shattered, and joints that had begin to get united, have again broken. Hence it can be well concluded that it is not the non-union or mal union that has lead to the breakage of the rod, it was the other way round. Also it is pertinent to note that the steel rod has broken when the fracture have begun to heal. Not only that, even if it is admitted for argument sake that these documents stand for quality of the products generally the quality of the rod used in the surgery has not been subjected to any kind of examination either directly by the Forum or through an expert. Also it has not been shown convincingly that the said rod contained the marks to prove the quality of the product.
We think the doctrine of Res-ipsa loquitur has application in this case since the very breakage of the rod itself is enough to show its poor quality. In conclusion, we are of the view, that the surgery in question has been conducted by 2nd opposite party in accordance with the standard procedure for such an operation. No imputation of negligence or deficiency in service can be attributed against the doctor. At the same time the implant used has not been of high quality to withstand the weight bearing acts of the patient in the various stages of healing process. The manufacturer of the product is not a party to the proceedings. The blame is attributable against 1st opposite party who has been careless in purchasing such products and having been instrumental in using such devices at the risk of the health of the patients. Therefore we hold 1st opposite party accountable on that count. The complainant need not have undergone the 2nd surgery had 1st opposite party provided good quality products for the surgery. Hence 1st opposite party is liable to pay the charges incurred for the second surgery by the complainant 1st opposite party shall also bear the costs of litigation.
6.In short we allow the complaint as follows:
i. 1st opposite party shall refund Rs. 10,000/- along with interest
@ 9% p.a. from 16-01-2009 till payment.
ii. 1st opposite party shall pay an amount of Rs. 25,000/-
towards compensation for mental agony and pain undergone
by the complainant.
iii. 1st opposite party also shall pay Rs. 5,000/- towards cost of
litigation.
The aforesaid order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 30th day October 2012