PER DR. S.M. KANTIKAR, MEMBER

1.           The facts of the case are: The Complainant Manik Maliba Tarade met with a motorcycle accident on 09.04.2004 and sustained fractures at around 07.30 p.m. He was admitted immediately in OP-3/hospital Dr. Daule and after the CT Scan and necessary treatment Dr. Daule suggested for major surgery. However, the next day patient’s relative shifted the patient to OP-1/Sushrut Medical Care & Research Societies Hardikar Hospital, who inserted a steel rod in both the hands. The Complainant alleges that the steel rod in his right hand was not properly put for which he has to take treatment again from 05.07.2004 to 21.07.2004.
2.           However the fracture remained un-united and the hands became bent. Thereafter Dr. Patil from Ahmednagar operated his right hand by removing the rod but still his right hand remained bent, hence, he became permanent disable and lost his earning capacity. Alleging medical negligence and deficiency in service on the part of OP the Complainants filed Consumer Complaint with a prayer of Rs.9,30,928.30/- along with Rs.10,000/- as cost.
3.            The District Forum dismissed the Complaint; the State Commission also dismissed the appeal.
4.           The District Forum dismissed the Complaint; the State Commission also dismissed the appeal. Hence, aggrieved by the order of the State Commission the Complainant filed this Revision Petition.
5.           At the admission stage, we have heard the Counsel for the Petitioner/Complainant. There is a delay for 30 days in filing this Revision Petition. We hereby condone the delay after hearing the reasons as stated in the application. The counsel submitted that, the complainant is agriculturist, met with a road accident on 09.04.2004 at about 07:30 p.m. He was immediately admitted to Daule Hospital (OP-3) who advised for CT scan. Thereafter, on 10.04.2004 the patient was shifted to OP-1 the Hardikar Hospital, Pune. Dr. Hardikar (OP-2) operated him and put steel rod in right and left hand. The Complainant suffered right hand deformity because of negligent operation performed by the OP-2, it is supported by the certificate of Dr. Patil. We have perused the certificate, it is a disability certificate which was issued by District Civil Surgeon, District Hospital, Ahmednagar and mentioned that “his disability is more than 40%”.  The Counsel further submitted that he sought permission for expert evidence before the District Forum, which was not allowed by the Forum.
6.           We have perused the medical records, the orders of the District Forum and the State Commission. We have noted that, the OP raised objection on maintainability as non –joinder of trustees as parties, it was a Public Charitable Trust hospital. Also, the complaint was not supported by affidavit. After detailed examination and investigations OP-1 revealed that there were multiple wounds, and fractures  as following:

                    # Head injury   # Ribs (Left  8^th 9^{th )}  # Hummers M/3 (Left) # L/E radius (Left) # Radius/Ulna with CLW dorsum forearm Rt.

    # Clavicle, neck scapula, caroming and lentoid with shoulder abrasion (Right). # 5^th M. C. neck (Right) # 2,3,4,5 M. T. foot with CLW aspect ankle 3x2x1 cm. (Right) # Zygoma and maxillary sinus (Right) with CLW cheek 5x3x1 cm. Below pinna. (# is the symbol used for ‘fracture’ in medical terminology)  

7.          The medical records on file revealed that, OP-1 treated the complainant with all care. We have specifically asked the Counsel about, the basis of the alleged medical negligence in this case, which he could not explain at our satisfaction. The written version of OP-2 clearly stated that,

“(e) the complainant was taken to operation theatre on 10.04.2004 itself after completing necessary pre-surgical fitness for debridement and closure of right foot under spinal anaesthesia and suturing of CLW of cheek under local anesthesia by plastic surgeon.

(h) On 17/04/2004, performed surgery for plating of fractures (Left hummers, Right Radius/Ulna and Left L/E of radius). The fracture of Zygoma Right was also elevated. Bone Grafting was also done for the fractures. Furthermore, after surgery best Prophylactic Antibiotic Cover, was given, after doing culture/sensitivity tests.

(l) The dressing was done, but on 5^th July discharging a sinus was noted in forearm, X-rays were taken which revealed that the implant loosening in both forearms. Hence, on 8/7/2004 further surgery was performed for stabilization of fracture with winger’s external fixture and bone grafts, applied right forearm cast. The left hand wound healed completely on 23^rd August, 2004. The X-rays were repeated on 8^th September, 2004. It revealed left Humerus had had good callus with fixture in situ but right forearm however showed further loosening of implants, X-ray showed non-union of the (R) forearm bones of angulations and presence of deformity. The Complainant was advised for removal of implants and fixture application. But he refused to undergo the required treatment. Thereafter, the patient on 15/10/2004 contacted Dr. Patil from Ahmednagar who performed surgery and removed steel plates from his right hand. But, the patient has neither produced any medical case papers pertaining to the treatment given by Dr. Patil nor any certificate or affidavit of Dr. Patil to show that the steel plate/rod was not properly inserted in his right hand by OP-2.

7.           We have gone through some medical literature and standard books on Orthopedic surgery, namely; Standard Orthopaedic Operations, by J. Crawford Adams, Watson-Jones Fractures and Joint Injuries, by J. N. Wilson, and Campbell’s Operative Orthopaedics, clarified that, the treatment given by OP-2 was proper one. There is no deviation of standard practice.

                    The basic principle relating to medical negligence is discussed in the context of BOLAM’s Rule. This was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital Management Committee, (1957) 1 WLR 582, as follows:

                  “Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill…. It is well-established law that it is sufficient if he exercised the ordinary skill of an ordinary competent man exercising that particular art.”

 Similarly, in the case of Kusum Sharma vs. Batra Hospital and Medical research, (I) 2010 CPJ 29(NC) laid down principles of law pertaining to the medical negligence.

8.           Therefore, it is clear that the averments of the Complainant against OP 1 to 3 are bereft of any merit. Regarding maintainability of complaint, it’s just technical issue, has no importance. Also, the Complainant himself did not follow instructions of OP-2 & 3, he got removed steel rod from his right hand by Dr. Patil of Ahmednagar instead of visiting OP-1 for follow up treatment. Therefore, it was negligence on the part of complainant himself for sustaining disability bending his right hand.
9.           Therefore, we do not find any apparent error in the well-reasoned order passed by both the fora below. Accordingly, we dismiss this revision petition. No orders as to costs.