Sri.D.Krishnappa,<br /> President<br /> <br /> 1. This is a complaint presented by the complainant against the Opposite parties for their medical negligence with his grievance that the complainant on 22.10.2006 met with a road traffic accident sustained grievance injuries and got admitted to K.R.Hospital, Mysore. As he did not get proper treatment there, on 24.10.2006 he got himself admitted to the Opposite party Nursing Home, there the 2nd Opposite party who was a doctor as an Orthopaedic surgeon took x-ray of the injury and operated the right femur bone on 26.10.2006. But, there was negligence on the part of 2nd Opposite party in conducting that operation, therefore he subjected him for second operation on the next day, as the result of in-efficient operation. The 2nd Opposite party during the course of operation did not fix the iron rods and screws and administered proper antibiotics, as a result the injury got infected resulting in formation of pus. The 2nd Opposite party without their consent conducted second operation on 27.10.2006 inserted sub-standard quality rods charged them for excess money including the operation charges and the cost of the rods used, however the Opposite parties did not take proper care and as the result after 3 months even despite 2nd Opposite party attending and treating him in his house, the injury did not heal. Therefore, he again on 17.03.2007 got admitted to J.S.S.Hospital where one Dr.Roopakumar, the Orthopaedic Surgeon conducted surgery. Because of the negligence or deficiency in the service of the Opposite parties, he suffered expenditure of Rs.50,000/-, mental agony and thus has prayed for awarding damages of Rs.5,00,000/-.<br /> 2. The Opposite parties have filed common version admitting to have treated the complainant for his femur bone fracture and surgery, but denied all other allegations and stated that the complainant who got himself admitted to K.R.Hospital earlier got himself discharged against medical advise, that he had suffered fractures in his right femur bone, both being very badly broken and he was very obese. The prognosis of which was very poor. The complications of the injuries were explained to the complainant and his family members including the possibility of infection, surgical failure, non-union of fractures, implant breakage for which the consent of the concerned was obtained. No guarantee was given about 100% success of the treatment and it will be healed with one surgery. All the routine protocels of the surgery has been observed with required precautionary antibiotics and operation in fact was done on 25.10.2006 and not on 26.10.2006 as stated by the complainant. Admitting to have charged the complainant for the legal expenditure denied exhorbitant changing. After surgery on 25.10.2006, on 31.10.2006 it was found that there was mild infection of the wound. It was treated with suitable antibiotics after taking wound culture and sensitivity test report. The complainant was a chronic alcoholic and behaving abnormally and got discharged against medical advise on 09.11.2006 before complete healing of the wound which has been recorded in the case sheet, which is to the knowledge of the complainant. Denied to have advised the complainant to get discharged, as contended and stated operation was made with all care and specialization. The complainant was non-cooperative. On 29.11.2006, the complainant got admitted with a history of severe pain in his right hip and his right hip shown one of the screws in the hip was loose and this was due to carelessness and heavy body and early weight bearing therein by the complainant against the medical advise. The complainant was properly advised his condition by 10.12.2006, had improved and was discharged with advice to take absolute rest for 5 to 6 weeks. When the complainant was admitted on 29.11.2006 there was no sign of wound infection as reflected in the case sheet and wound had healed well. The complainant was walking even though he was duly instructed not to walk and thus attributing that the complainant was non-cooperating with them and have acted against the medical advice and the complainant might have not followed the advise and because of the poor nutrition and poor body resistance infection must have occurred and denying any sort of deficiency at their end have prayed for dismissal of the complaint.<br /> 3. In the course of enquiry into the complaint grievance, the complainant and 2nd Opposite party have filed their affidavit evidence. The complainant has reiterated what he has stated in the complaint. Whereas the Opposite party has denied all the allegations and stated that he took all care in treating the complainant. The complainant and the Opposite parties have produced copies of case sheet. The complainant has examined the doctor of J.S.S. Hospital, Dr.C.S.Rupakumar who conducted operation in the J.S.S.Hospital on 21.03.2007. Heard the counsel for both the parties and perused the records. <br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the Complainant proves that the Opposite parties have caused deficiency in their service in their improper conducting surgery of right femur bone on 25.10.2006 and on 26.10.2006?<br /> 2. Whether the complainant is entitled for the relief sought for?<br /> 3. What order?<br /> 5. Our findings are as under:-<br /> Point no.1 : In the negative.<br /> Point no.2 : In the negative.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Points no. 1 and 2:- As could be seen from the complaint allegations and also affidavit evidence filed by the complainant except the complainant alleging that there is short coming in the operation done by 2nd Opposite party in the Nursing Home of 1st Opposite party and the operation was not done properly, has not placed any materials or acceptable oral or documentary evidence to prove the negligence of 1st and 2nd Opposite parties and in conducting surgery of the complainant’s right femur bone. No doubt, there is no dispute with regard to the fact that 2nd Opposite party in the Nursing Home of 1st Opposite party conducted a surgery of the broken right femur bone fixing iron rod with screws. But, it is the contention of the complaint that the operation done by the 2nd Opposite party at the first instance i.e. on 25.10.2006 was not properly done, therefore the 2nd Opposite party did the second operation on the next day itself i.e. 26.10.2006 and therefore the learned counsel for the complainant attributed negligence or short comings to 2nd Opposite party in conducting the surgery. Whereas the 2nd Opposite party, of course has not denied the second surgical intervention made by him for set-righting the fixation of the rods. On going through the case sheet produced by both the parties, it is not in dispute that the first operation was done on 25.10.2006. The case sheet further reveals that the surgical intervention was made on 26.10.2006 by explaining the reasons to the complainant and his attenders to check the losing of the screws at the neck of the femur and the screw was properly fashioned and the complainant was continued as inpatient. This stand of the 2nd Opposite party that second surgical intervention was done to tighten the screw has not been controverted. Further, the 2nd Opposite party in his version and also in the evidence stated that on 31.10.2006 there was mild infection of the wound, it was treated with suitable antibiotics of taking wound culture and sensitivity test report, but the complainant was not fallowing any instructions. Further, the stand of the Opposite party that the complainant himself got discharged against medical advice on 09.11.2006 has not been rebutted by the complainant. As found from the entry in the case sheet, the 2nd Opposite party has recorded, that though they had advised the complainant to continue as inpatient till healing of the wound and despite explaining the consequences of the operation regarding discharge from the Nursing Home the complainant got discharged has remained un-rebutted. The defense of the opposite parties further that the complainant again on 29.11.2006 got himself admitted with a history of severe pain in his right hip and they noticed the non-cooperative act of the complainant and weight bearing check x-ray of the right hip shown one of the screw was loose and that was due to carelessness and heavy body and early weight bearing by the complainant against the medical advice. Even then the complainant was explained and he was re-admitted and was put for bed rest and observation, at that time, the complainant was behaving abnormally, hence Psychestrict opinion was also obtained, the complainant was put on required drugs for alcoholic withdrawal syndrome. As the condition of the patient improved by 10.12.2006 was discharged with advice to take absolute rest for 5 to 6 weeks and review after 5 to 6 weeks and stated that when the complainant was admitted on 29.11.2006 there was no sign of wound or infection reflected and recorded in the case sheet and the wound had been healed well. Therefore, it is clear from the materials placed before us and the contentions of both the parties, that after 10.12.2006 once the complainant got discharged on that day till he was operated in the J.S.S.Hospital he did not go for review with 2nd opposite party and failed to follow the medical advice given by the 2nd opposite party. It is on going through the contention of 1st and 2nd opposite party, it is clear that the complainant did not have any problem after the surgery was done on 26.10.2006 until he was operated by Dr.C.S.Rupakumar on 21.03.2007. It is further seen that because of the failure to follow of the medical advice, obese of the complainant and when failed to take absolute bed rest and the complainant started attending to his work, that has resulted in loosing of the screw leading to infection of the wound and that has caused protrudation of one of the screw fashioned to this steel rod and therefore when the complainant approached Dr.C.S.Rupakumar, he had re-operated and set-right the implanted rod and the wound had healed well wherein the complainant become absolutely free from the problem and he is now walking independently.<br /> 7. The complainant in order to prove either the short comings or negligence on the part of 2nd opposite party has examined Dr.C.S.Rupakumar who did surgery on 21.03.2007 on finding the infected wound. But this witness who has been examined as an expert has not said a word against the 2nd opposite party in he having had not used his professional skill in conducting surgery. When the learned counsel for the complainant asked this witness, as to what is the reason for infection, the witness has stated that he cannot give the opinion regarding cause of infection and non-union, as it can happen for several reasons in the course of cross-examination by the counsel for the Opposite party, this witness (Doctor), has stated that he is not able to comment on the treatment by the earlier doctor, as the infection can happen for many reasons and witness further stated he cannot tease the cause of infection, because the patient had gone to him after a laps of many months and further stated he cannot also tease that the operation done earlier was improper and categorically stated if the Complainant had gone to him for treatment at the initial stage, he would have also done internal fixation of both trochanter and shaft of femur. The evidence of this witness throw light on the subject and also on the dispute that no deficiency or negligence can be attributed to the operation done by 2nd opposite party in the nursing home of 1st Opposite party. The opinion of the expert that infection of the Complainant can happen for many reasons has not been controverted by the Complainant. If 2nd Opposite party had not done surgery with all care and treated him with needed anti-biotic, infection could have happened within a short period after the Complainant was discharged from the hospital, but till for about 3 months, the Complainant did not Complain any short of infection or uncomfortness. It emerges since the Complainant did not follow the medical advice and take bed rest and started attending to his work that appears to have been the cause for loosing of the screw, leading to an injury which later got infected and as the Complainant did not avail for proper treatment that led to infection, further leading to protrudation of a screw. Apart from this, the Complainant as could be seen has failed to produce any expert evidence to call the treatment of 2nd Opposite party is deficient or short comings. The learned counsel appearing for the Opposite parties have relied upon a decision of the Hon’ble Karnataka State Consumer Disputes Redressal Commission, decision rendered in appeal no.1623/06. Wherein the Hon’ble State Commission dealing with the similar case in Para 16 of its Judgment observed as under:-<br /> “ Lord Denning, in one of his illustrious judgements, has observed that things go amiss in spite of the best treatment given by the doctors. He has further held that simply because the treatment failed, the doctor cannot be blamed for negligence. The Supreme Court has repeatedly held that charge of negligence made against the medical man has to be proved by satisfactory evidence and the maxim res ipsa liquator cannot be applied.”<br /> 8. In the case on hand also we find no expert opinion or evidence to prove that the act of 2nd Opposite party was anyway deficient, therefore mere allegations of the Complainant attributing negligence or deficiency, in our view is not sufficient to award damages against the Opposite parties. Hence, for the above reasons we answer point no.1 and 2 in the negative and hold that the Complaint is liable to be dismissed. With the result, we pass the following order. <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br />