State Consumer Disputes Redressal Commission
Ramu vs D.K. Sivadasan on 7 June, 2023
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BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION AT PUDUCHERRY
Dated this the 7th day of June 2023
Consumer Complaint No.01/2020
Ramu, S/o.Pushpanathan,
Aged 49 years
No.187, Subbaiya Nagar,
Thattanchavadi, Puducherry-605 009. ... Complainant
Vs
D.K.Sivadasan,
Aged 55 years
Orthopaedic Surgeon at
M/s.Sai Krupa Hospital,
No.31, Cuddalore Road,
Puducherry-605 001. ... Opposite Party
BEFORE:
HON'BLE THIRU JUSTICE R. PONGIAPPAN
PRESIDENT
DR.S.SUNDARAVADIVELU,
MEMBER
TMT.S. OUMASANGUERY,
MEMBER
FOR THE COMPLAINANT:
Tvl.M.Govinda Thirunavukarasu, D.Reena Iswariya, Advocates
FOR THE OPPOSITE PARTY:
Tvl.L.Sathish, S.Velmurugan, E.Karthik and S.Sudarsanan
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O R D E R
(By Dr.S. SUNDARAVADVELU, Member) This complaint has been filed by the complainant under Section 17 of the Consumer Protection Act ,1986 (hereinafter called the CP Act in short) alleging negligence in the performance of surgery to him by the Opposite party orthopaedic surgeon and seeking a compensation of Rs 25,00,000 for the mental agony ,pain,suffering and financial loss suffered by him.
2. The complaint in brief is as follows:
The complainant Sri.Ramu, aged 55, is a driver by profession and employed in a private firm in Puducherry. On 03.02.2016 he met with a road accident and sustained grievous injury in his right leg. He was immediately taken to Sri Venkateswara Medical College Hospital and given first aid. Then he was shifted to the Opposite Party's hospital on 04.02.2016 for treatment. He was informed that plates will be inserted in the right thigh. Next day i.e on 05.02.2016 surgery was done and he was discharged on 10.02.2016. He was visiting the Opposite Party's hospital for routine check-ups regularly and he was informing the Opposite party that he was suffering severe pain in the operated leg and unable to move the leg. In March 2017, the Opposite party advised him to go for another surgery and undergo bone grafting .He was further advised that however even after such procedure, remarkable change cannot be expected.
The complainant then approached JIPMER hospital, Puducherry on 12.03.2018 where he was diagnosed as 'non union of Right Distal Femur fracture with 3 implant failure with no DNVD'. (DNVD stands for Distal Neuro vascular deficit and no DNVD' means no injury to the nerves or blood vessels) The complainant underwent broken implant removal +ORIF + bone grafting at JIPMER hospital on 21.03.2018 and discharged on 02.04.2018. (ORIF means Open reduction and internal fixation).
3. The complainant alleges that the surgery done by the Opposite party failed due to the negligence of the Opposite party; the complainant was informed that plates would be fixed in the right thigh whereas two strings were inserted with nuts and bolts due to which the bones could not get united and he was totally immobilized. He underwent unbearable physical and mental agony. He was almost bedridden for the past three years and lost his income. He complained to the Government of Puducherry and also sent a legal notice to the Opposite party on 05.09.2019 calling upon the Opposite party to pay compensation. The Opposite party gave false and vexatious reply on 07.10.2019. Hence the complainant is before this Commission with his complaint of negligence in the treatment rendered to him.
4. The Opposite party filed reply version and set forth his defence denying the allegations of negligence in the treatment of the complainant. At the outset objection regarding the maintainability of the complaint was raised. While surgery was done in February 2016, the complaint has been filed after a period of 3 years and 10 months. Hence, the present complaint is barred by the law of limitation. On the allegation of negligence as per the version of Opposite party, 4 immediately after the accident on 03.02.2016 as the bleeding could not be arrested in the private medical college, he was referred to the Opposite party for specialised treatment.
5. The complainant was admitted at casualty and necessary pre- investigative tests were done. The complainant had 4×2×4 cm lacerated wound on external right lower thigh. X rays revealed that he had a compound fracture of lower 3rd of shaft of right femur with bone protrusion through the skin. Compound fracture means the skin and soft tissue over the bone is damaged and the bone is exposed to the outside environment. The complainant was a diabetic which further aggravated the complications. Immediate steps were taken to arrest the bleeding and the injured leg was dressed and splinted to immobilize the fracture.
6. Compounding was severe and graded as Type II. One of the main complications in compound fracture is infection at the fracture site. As the complainant was diabetic and he came to Opposite party hospital almost 30 hours after injury, the top priority was to ensure that the injured site does not get infected pre- operatively or post-operatively. Accordingly, preoperative antibiotics were administered and the wound was properly cleaned to prevent infection. A well informed consent regarding the procedure to be done was obtained from the complainant after explaining about the modes of treatment available, best treatment that could be given in the given circumstances and the prognosis of such treatment etc. 5
7. Fitness of the complainant for surgery was confirmed and the procedure was done on 05.02.2016. The procedure was uneventful .In due course of time his wound healed well. Infection to the injury site was completely avoided. He was discharged on 10.02.2016 with necessary instructions. Physiotherapy was given regularly and the progress constantly monitored. However after about 5 months of physiotherapy, in March 2017, delayed union was noticed at the fracture site. Delayed union is a medically accepted complication of orthopaedic injuries. The complainant was advised to undergo bone grafting - process by which fresh bone with the stem cells are harvested from spongy bone of the patient and placed at the fracture site to induce new bone formation. However the complainant was not willing to get the bone grafting done probably to avoid another surgical procedure and thought he could pull along without such procedure.
8. After October 2017, the complainant did not report to Opposite Party's hospital even for physiotherapy. Opposite party came to know that the complainant took further treatment from JIPMER Hospital through his letter addressed to Government of Puducherry in August, 2019. The diagnosis of ' non union of right distal femur fracture with implant failure with no DNVD' done by JIPMER does not mean that such complication arose because of wrong treatment given by the Opposite party. In fact non union was already noticed and bone grafting was advised by the Opposite party which is the same procedure done by JIPMER hospital also. As regards broken implants, as long 6 as the complainant was under treatment with the Opposite party, the implant was intact. The exact date when the implant was broken was not given by the complainant. The implant was placed on 04.02.2016 and it withstood for about 18 months. The contention that wrong procedure was followed is incredible, bizarre and made without any knowledge about the procedure done by the Opposite party.
9. The Opposite party is a specialist orthopaedic surgeon and running a 35 bedded hospital exclusively for orthopaedic patients. He is highly qualified M.S/D.N.B and has done more than 20,000 orthopaedic surgeries and more than 2000 trauma surgeries in thigh.
10. The Opposite party did a standard procedure with standard implants and gave best possible treatment and performed a complicated surgery with efficient doctors. Best possible post operative care was also given. Non union of bone could not be attributed to the negligence in treatment. The Opposite party gave a detailed reply to the Government vide his letter dated 04.09.2018 in respect of the complaint made by the complainant to the Government and all further proceedings were dropped. The legal notice received was also given detailed reply on 07.10.2019. The complainant has also approached the Hon'ble Motor Accident Tribunal for claim of compensation. He has approached Max Bupa Health Insurance for reimbursement of his medical claim. The Opposite party has given his best possible care and attention to the complainant without any 7 deficiency or negligence and acted strictly in accordance with established medical procedures.
11. The complainant examined himself as witness CW1 and marked exhibits C1 to C14. Two more witnesses Dr Anand Kumar Assistant Professor, Department of Orthopaedics, JIPMER, Puducherry and Dr.Sri Ramulu, Director of Health and Family Welfare Services, Puducherry were examined from the complainant side as CW 2 and CW3. CW3 marked exhibit X1-series. On the Opposite party side, the Opposite party examined himself as RW1 and marked exhibit R1-series.
12. Both sides made oral arguments and submitted written arguments. Many citations of Hon'ble Supreme Court and Hon'ble National Consumer Disputes Redressal Commission were presented by both sides. They are listed below. Complainant's side (1) State of Haryana and another Vs. Jasbir Kaur & Others (05.08.2003) of Hon'ble Supreme Court of India.
(2) K.Venkatesalu, S/o.N.Krishnan Vs. Dr.Thilagam Rajesh, Managing Director, K.R.Hospital, Coimbatore (27.02.2013) of State Commission, Chennai.
(3) Pravat Kumar Mukherjee Vs. Ruby General Hospital and others (25.04.2005) of National Consumer Disputes Redressal Commission. (4) Geeta Sapra and Others Vs. B.L.Kapoor Memorial Hospital and another (31.10.2003) of Hon'ble Supreme Court of India.
(5) Samruddhi Co-Operative Housing Vs. Mumbai Mahalaxmi Constructions (11.01.2022) of Hon'ble Supreme Court of India.
8(6) Dr.Stepheena and another Vs. Lilly Joseph (10.12.2014) of Hon'ble National Consumer Disputes Redressal Commission. (7) S.Bhanupriya Vs. The State of Tamilnadu and three others (22.07.2022) of Hon'ble Madras High Court.
(8) Savita Garg Vs. The Director, National Heart Insitute (12.10.2004) of Hon'ble Supreme Court of India (9) Rajkot Municipal Corporation Vs. Manjulben Jayantilal Nakum and others (17.01.1997) of Hon'ble Supreme Court of India. (10)Union of India Vs. United India Insurance Co. Ltd. And others (22.10.1997) of Hon'ble Supreme Court of India.
(11)Oriental Fire and General Insurance Co. Ltd., Vs. P.P.Misri and others (11.10.1991 of Hon'ble Kerala High Court.
(12) Indian Medical Association Vs. V.P.Shantha and others (13.11.1995) of Hon'ble Supreme Court of India.
(13) State of Haryana and others Vs. Smt. Santra (24.04.2000) of Hon'ble Supreme Court of India.
(14) M/s.Spring Meadows Hospital and another Vs. Harjol Ahluwalia (25.03.1998) of Hon'ble Supreme Court of India (15) Nizam's Institute of Medical Sciences Vs. Prasanth S.Dhananka and others (14.05.2009) of Hon'ble Supreme Court of India.
Opposite Party's side
1. CDJ 2019 SC 222 - Vinod Jain Vs. Santokba Durlabhji Memorial Hospital and Another (25.02.2019) of Hon'ble Supreme Court of India.
2. CDJ 2018 SC 1032 - Dr.S.K.Jhunjhunwala Vs. Dhanwanti Kumar and another (01.10.2018) of Hon'ble Supreme Court of India.
3. CDJ 2005 SC 570 - Dr.Jacob Mathew Vs. State of Punjab and another of Hon'ble Supreme Court of India.
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4. CDJ 1999 (Cons) CASE No.028 - Kanhaiya Kumar Singh Vs. M/s.Park Medicare & Research Centre (27.05.1999) of Hon'ble National Consumer Disputes Redressal Commission.
5. CDJ 2005 SC 616 - State of Punjab Vs. Shiv Ram and others (25.08.2005) of Hon'ble Supreme Court of India
6. 2002 AIR SCW 991 - M/s.Kerala Agro Machinery Corporation Ltd., Vs. Bijoy Kumar Roy and others of Hon'ble Supreme Court of India.
13. After careful consideration of the documents presented, depositions and arguments made, the following issues were framed for resolving the dispute.
1.a)Whether the complainant is a consumer under the Consumer Protection Act?
b) Whether the complaint is barred by limitation? and
c) Whether the complaint is maintainable when the complainant has approached and obtained compensation from the Motor Accident Compensation Tribunal?
2. Whether there was any negligence or deficiency in the treatment rendered to the complainant by the Opposite party?
3. If yes ,what is the compensation to be given to the complainant?
4.To what other relief ,the complainant is entitled to ?
14.Issue 1.a)Whether the complainant is a consumer under the Consumer Protection Act?
As per Section 2 d (ii) of Consumer Protection Act,1986, Consumer means any person who hires or avails of any services for a consideration which has been paid or promised. Section 2(1)(o)defines 'service' as service of any description made available to potential users including the provision of facilities in connection with banking, financing ,transport etc. Medical services was not 10 specifically included in the definition. In 1995,in the case of V P Shantha Vs Indian Medical Association, Hon'ble Supreme Court brought the medical profession within the ambit of service as defined in Section 2 (1) (o) of the Act
(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
15. The complainant herein Thiru.Ramu availed treatment in the Opposite Party's hospital and treated by the Opposite party Orthopaedic surgeon on payment of required fees. Hence the complainant is undoubtedly a consumer under the Consumer Protection Act.
16. 1.b)Whether the complaint is barred by limitation?
It is the objection of the Opposite party that the complaint has been filed after a period of more than 3 years and 10 months from the date of surgery and is barred by limitation and hence liable to be dismissed. The Opposite party performed the surgical procedure on 05.02.2016 and discharged on 10.02.2016.The complaint was filed on 03.01.2020.In support he has cited the order of Hon'ble Supreme Court in Kerala Agro Machinery Corporation ltd vs Bijoy Kumar Roy and others wherein the Hon'ble Apex Court held that"
8...The question of stage of the proceeding has no relevance so far the question 11 of limitation is concerned. The claim has been filed beyond the period of limitation say more than four years after defects were pointed out." and the claim of the respondent was rejected.
17. Counsel for complainant says the surgery by the Opposite party and subsequent physiotherapy given almost for a year constituted continuing wrong and it carries a continuing cause of action and hence the complaint is well within limitation. She has cited the decision of Hon'ble Apex Court in Samruddhi Co operative Housing Society Vs Mumbai Mahalaxmi Construction Pvt Ltd in her support. In this case continuing wrong was discussed and Hon'ble Supreme Court held that:
"343. ...Hence, in evaluating whether there is a continuing wrong within the meaning of Section 23, the mere fact that the effect of the injury caused has continued, is not sufficient to constitute it as a continuing wrong. For instance, when the wrong is complete as a result of the act or omission which is complained of, no continuing wrong arises even though the effect or damage that is sustained may ensure in the future. What makes a wrong, a wrong of a continuing nature is the breach of a duty which has not ceased but which continues to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation." (emphasis supplied) .A continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreement."
18. Thus to fulfill the criteria for continuous wrong, the negligent act must have continued or repeated. In the case on hand the surgery by the Opposite party is the alleged reason for the injury and only one surgery was performed which is obviously not a continuing act. It is not the allegation of the 12 complainant that the physiotherapy caused the injury. Therefore the dates of performance of physiotherapy is not considered. In view of the above the claim that the complainant suffered continuing wrong is not valid and does not provide any defence against the bar of limitation.
19. If limitation is calculated from date of surgery i.e 05.02.2016, the complaint should have been filed before 04.02.2018 whereas the complaint was filed only on 03.01.2020 which is well beyond the limitation period.
20. 1.c)Whether the complaint is maintainable when the complainant has approached and obtained compensation from the Motor Accident Compensation Tribunal ?
During the course of the enquiry it was noticed by this Commission that the complainant had filed a claim in the Motor Accident Claims Tribunal and obtained compensation. The counsel for the complainant was asked to clarify whether the receipt of compensation from the Motor Accident Compensation Tribunal would be a bar for raising complaint under the Consumer Protection Act. The counsel for the complainant argued that this would not be a bar as the cause of actions are different. While the cause of action for claiming the compensation under the Motor Vehicles Act arose from the accident, cause of action under the Consumer Protection Act has arisen from the negligence of the doctor in the treatment given to him. In support the counsel submitted the judgment of the Hon'ble National Consumer Disputes Redressal Commission in 13 Pravat Kumar Mukherjee vs Ruby General Hospital in 2005 . The relevant portions of the judgment are extracted below "B. Whether the M.A.C.T. case would bar complaint under the C.P. Act?
The other preliminary objection raised by learned Senior Counsel, Mr. Ashok Desai and Mr. Haksar is with regard to maintainability of this complaint on the ground that Complainant had already approached a tribunal under the Motor Vehicles Act, 1988. It is also pointed out that in the M.A.C.T the Complainant has received the amount of compensation and without disclosing the said fact he has approached this Commission under the Consumer Protection Act, 1986. Therefore, the complaint is not maintainable. In our view, this submission also requires to be rejected because the two causes are different and are required to be decided by separate Tribunals/Forums having limited jurisdictions.
The cause of action before the M.A.C.T was with regard to rash and negligent driving by the driver of the other vehicle by which accident was caused; and the cause of action against the Doctors or the hospital is for deficiency in rendering service Emergency treatment by the hospital and the doctors.
Both causes are separate and distinct.
Further, it was not possible for the Complainant to maintain the complaint for the deficiency in service by the doctors before the Motor Accident Claims Tribunal. Similarly, before the Consumer Forum, the grievance with regard to the accident and driver's liability or the vehicle owner's liability cannot be dealt with or decided."
Hon'ble National Commission in Geetu Sapra vs B.L.Kapoor Memorial Hospital in 2006 reiterated the decision. 14
21. In the case on hand it is admitted that the complainant had filed claim before the Motor Accidents Claims Tribunal, Puducherry for the road accident and received compensation of Rs 2,76,000/-. However this complaint has been filed alleging negligence in performing surgery of the complainant by the Opposite party.
22. In accordance with the decisions of the Hon'ble National Commission, this Commission concludes that the present complaint is maintainable as the cause of actions are different.
23. Issue No. 2. Whether there was any negligence or deficiency in the treatment rendered to the complainant by the Opposite party?
The grievance of the complainant with regard to the surgery may be summarised as follows.
1. The complainant and his family were not informed about the kind of surgery to be done ;
2. Opposite party informed that plates will be inserted in the right thigh whereas strings were inserted with nuts and bolts which resulted in non union and total immobility of the complainant .The mode of surgery was selected without considering the past history and occupation of the complainant.
3. Implant failed due to negligence in performing the surgery.
4. Error in medical records.
24. Before analyzing the grievance of the complainant regarding the conduct of the surgery in detail, it may be apposite to traverse the legal principles for 15 determining medical negligence. Both the counsels have relied on various judgments of Hon'ble Supreme Court laying down the matrix of legal principles. In Nizam's Institute of Medical Sciences case Hon'ble Supreme Court observed and held "20. The broad principles under which medical negligence as a tort have to be evaluated, have been laid down in the celebrated case of Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1. In this judgment, it has been observed that the complexity of the human body, and the uncertainty involved in medical procedures is of such great magnitude that it is impossible for a doctor to guarantee a successful result and the only assurance that he can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence." The Bench also approved the opinion of McNair,J in (Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 (QBD), in the following words:
"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 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 exercises the ordinary skill of an ordinary competent man exercising that particular art." (Charlesworth & Percy, ibid., para 8.02) The Bench finally concluded its opinion as follows:
"We sum up our conclusions as under:16
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.... The essential components of negligence are three: "duty", "breach" and "resulting damage".
(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.
(4) The test for determining medical negligence as laid down in Bolam case (1957) 2 All ER 118 (QBD)holds good in its applicability in India. 17
25. In Vinod Jain vs Santokba Durlabhji Memorial Hospital, Hon'ble Supreme Court laid down the legal principles which would apply in cases of medical negligence.
"9. A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view (Bolam v. Friern Hospital Management Committee).
12. In para 89 of the judgment in Kusum Sharma & Ors. the test had been laid down as under:
"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view: I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.18
IV. A medical practitioner would be liable only where his conduct fell below that of the standard so far reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
26. In S.K.Jhunjhunwala vs Dhanwanti Kaur,Hon'ble Supreme Court observed . "20. All along and till date, the law laid down in Bolam's case (supra) is consistently followed by all the Courts all over the World including Indian Courts as laying down the correct principle of law on the subject. It is known as Bolam Test."
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27. In SpringMeadows Hospital Vs Harjot Ahluwalia, Hon'ble Apex Court observed "....It is indeed very difficult to raise an action of negligence. Not only there are practical difficulties in linking the injury sustained with the medical treatment but also it is still more difficult to establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer expense of bringing a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country. ..
28. In the case of State of Haryana vs Smt.Santra, Hon'ble Supreme Court proceeded to adjudicate the claim for medical negligence made by a mother of a failed sterilisation procedure based on the Bolam test and the principles enunciated in Spring Meadows case cited supra. The cases Rajkot Municipal Corporation vs Manjulben and others and Union of India Vs United India Insurance, both decided by Hon'ble Supreme Court and cited by the counsel for the complainant are not relevant to the case on hand. In both the cases liability of public authority for tortuous acts are dealt and no such issue is in dispute here.
29. The allegation of medical negligence is proposed to be examined in the light of the Bolam test and principles laid down by the Hon'ble Supreme Court. 20 A brief introduction to the medical terms relevant to the case on hand may be useful to appreciate the rival contentions.
30. The complainant suffered femoral shaft compound fracture. What is Femoral shaft compound fracture?
Femur (Thighbone) is the longest and strongest bone in the human body. Because the femur is so strong, it usually takes a lot of force to break it. Motor vehicle collisions, for example, are the number one cause of femur fractures. The long, straight part of the femur is called the femoral shaft. When there is a break anywhere along this length of bone, it is called a femoral shaft fracture. This type of broken leg almost always requires surgery to heal. If a bone breaks in such a way that bone fragments stick out through the skin or a wound penetrates down to the broken bone, the fracture is called an open or compound fracture. Open fractures often involve much more damage to the surrounding muscles, tendons, and ligaments. They have a higher risk for complications--especially infections--and take a longer time to heal.
31. What is Intramedullary nailing?
Currently, the method most surgeons use for treating femoral shaft fractures is intramedullary nailing. During this procedure, a specially designed metal rod is inserted into the canal of the femur. The rod passes across the fracture to keep it in position. Intramedullary nailing provides strong, stable, full-length fixation. An intramedullary nail can be inserted into the canal either at the hip or the knee. Screws are placed above and below the fracture to hold the leg in correct 21 alignment while the bone heals. Intramedullary nails are usually made of titanium. They come in various lengths and diameters to fit most femur bones.
32. Plates and screws.
During this operation, the bone fragments are first repositioned (reduced) into their normal alignment. They are held together with screws and metal plates attached to the outer surface of the bone. Plates and screws are often used when intramedullary nailing may not be possible, such as for fractures that extend into either the hip or knee joints. - source website: orthoinfo.aaos.org
33. With this brief introduction to the relevant medical terms, the discussion of the grievances is taken up in detail.
34. Complaint 1.The complainant and his family were not informed about the kind of surgery to be done.
The complainant was admitted in the Opposite Party's hospital on 04.02.2016 and the surgery was performed on 05.02.2016.
From exhibit R1 page 5 which is the consent form in Tamil signed by the complainant, his wife and son before the surgery, it could be seen that consent was given for conduct of ORIF or other alternative procedure as found necessary during the surgery; possible complications like infection, joint stiffness, implant failure, fat embolism were explained. The fact that the complainant was a long term diabetic due to which the possibilities that heart, kidney, liver might have been affected and the surgery may aggravate the damage was also mentioned. In view of the above informed consent given by 22 the complainant and his family members, the allegation that the complainant or his family were kept in the dark about the surgery to be done is found not correct.
35. Complaint 2.
The learned Counsel for the complainant says that the complainant suffers from Diabetes Mellitus and is taking medicine for the same and the Opposite party should have taken keen note of the patient's health issues while deciding the mode of treatment. The mode of surgery was selected without considering the past history and occupation of the complainant. Because of the insertion of two strings instead of fixing of plates, the bones could not get united which resulted in total immobility of the complainant. Implant also broke. Due to the wrong procedure done by the Opposite party, the complainant suffered unbearable physical and mental agony.
36. The counsel for the Complainant has relied on the judgment of Hon'ble Madras High Court in Bhanupriya Vs State of Tamilnadu. In this case , Hon'ble Madras High Court held the Opposite party hospital liable for negligence due to lack of post operative care and delay in attending to the complications. Selection of proper mode of surgery was not an issue in this case. She has also cited Dr.Stepheena vs Lilly Joseph and Rahul Sinha Vs Dr.Ashok Mitra to support her stand that mode of surgery should be chosen in consonance with the past medical history of the patient. 23
37. Perusal of Exhibits R1 page 6 (consent form) and page 8 pre anesthetic evaluation shows that the fact that patient was a diabetic has been noted in them before surgery
38. Further, the RW1 who is the Opposite party has deposed that since the patient was a diabetic and came to hospital after 30 hours of injury his priority was to ensure prevention of infection pre operatively or post operatively. For this reason, the complainant was also asked to stay in the hospital for four days as inpatient after the surgery. Hence it cannot be said that the Opposite party was not aware of the previous history of the patient. The Opposite party was fully aware and took the necessary precautions considering the diabetic condition. The complainant has also failed to produce any evidence that fixing of nails is contraindicated in case of diabetics.
39. Now the question whether correct treatment was followed is examined. The complainant said that plate should have been fixed instead of strings and because of the insertion of strings non union of bone occurred under strings may be restored. Two medical professionals were brought as witnesses by the complainant.
40. Evidence of Dr.Anand Kumar, Assistant Professor in JIPMER who performed the second surgery is important but he has not said anything that the surgery done by the Opposite party was wrong. On the other hand, during the cross examination, he agrees that non union of bone can occur due to various factors like obesity, age, co-morbidities like diabetes, blood pressure and merely 24 because of non union of bone an operating surgeon cannot be accused of medical negligence. Similarly regarding breakage of implants, he deposed that multiple factors like mechanical, excessive stress or load given on the implant, constant stress and trauma etc can lead to breakage of implants
41. He further stated that non union of bone and breakage of internal fixations are some of the known complications faced by orthopaedic surgeons and the presence of both these complications by itself will not amount to medical negligence.
42. The other medical professional, Dr.Sri Ramulu, Director of Health Services, Puducherry did not speak anything about the correctness or otherwise of the treatment given to the complainant. He deposed about the receipt of the complaint given by the complainant to the Lieutenant Governor office regarding the treatment given to him and how the complaint was sent to the Opposite party for getting his comments and how the reply from the Opposite party was forwarded to the office of Lieutenant Governor.
43. Thus the medical professionals who appeared on the side of the complainant have not given any insight supporting his cause. Per contra, evidence of CW2 in his cross supports the case of the Opposite party especially the statement that both the complications of non union and implant failure will not by itself amount to negligence.
44. Regarding failure of implant, the learned Counsel for the Opposite party says, the nails and screws were fixed on 05.02.2016 but the broken nail was 25 identified by JIPMER only on 12.03.2018 ie after 25 months from the date of implant. CW 2 in his deposition stated that multiple factors could have caused breakage of nail. It is seen from Ex R1 page 5 to 7 that while obtaining consent, the possibility of breakage of the implant as one of the post surgical complications was explained. During the visit of the complainant to the Opposite party hospital for follow up review and physiotherapy on various dates between 15.02.2016 and 9.10.2017, X rays were taken and they revealed proper functioning of implants and did not reveal any breakage. Discharge summary of JIPMER Ex C4 dated 02.04.2018 shows that the complainant came with the complaint of pain in right thigh since 4 months which means the pain must have developed in December 2017 probably due to the breakage of implant. As the X-ray taken in 9.10.2017 which is nearly 1 year and 8 months after the surgery did not reveal any breakage of implant and the breakage most likely occurred in Dec 2017, the Opposite party cannot be held to be negligent on this score.
45. We have seen that the medical experts who appeared on behalf of the complainant did not give any evidence supporting the allegation of wrong procedure of the complainant.
46. No medical literature has also been produced by the complainant in support of his contention that wrong procedure was adopted.
47. On the other hand the Opposite party has submitted medical literature in the form of articles in support of his stand that treatment adopted by him is an accepted method of treatment.
26_1.In the article Retro grade nailing for treating femoral shaft fractures :A review -authors - Thomas A.Decoster and Brianna N.Patti (source https : // digital repository .unm.edu ) it has been mentioned "Retrograde nailing is an effective procedure for treating fractures of the femoral shaft. Although antegrade nailing is the traditionally used technique retro grade nailing offers various advantages. Retrograde nailing for treating femoral shaft fractures can provide successful results similar to those of antegrade nailing in general and advantages in particular situations such as more distal shaft, bilateral and certain associated fractures. The technique is easier and requires less operating time than that of ante grade nailing with equivalent outcomes."
2.In the article" Distal femoral locked plating versus retrograde nailing for extra articular distal femur fractures: A comparative study" published in International Journal of Orthopaedics Sciences authored by Shailendra Singh et al it has been mentioned "In our study functional results trended toward better outcomes in distal femoral nails than plates in terms of mean union time and range of motion at knee joint.... There is no significant difference in overall functional outcome of distal femoral nailing and distal femoral plating done for extra articular distal femoral fractures though range of motion was more in case of retrograde distal femoral nail group and it was statistically significant."
3.In the article "Comparative study between distal femoral locking plate and retrograde femoral nail in surgical management of supracondylar fracture of femur" authors - Mahendra Kumar Gupta and Rakesh Bhargava published in International Journal of Scientific Study 27 "Conclusion: Results are better with both the techniques. The plate can be adopted to all fractures white retrograde nailing is better adapted to extra articular fractures."
4.In the article ' Comparing intramedullary nailing versus locked plating in the treatment of native distal femur fractures: Is one superior to the other? 'authors Jaclyn M.Jankowski et al published in Indian Journal of Orthopaedics "In the literature both intramedullary nailing (IMN)and locked (LP) plating have shown favorable results, but there is no consensus on a gold standard. Conclusion: comparisons revealed no differences in union rate, malalignment, time to union, average range of motion or complication rates requiring a return to the operating room. Until higher level data is available either intra medullary nailing or locked plating are acceptable methods of treatment for native distal femur fractures."
48. From the above medical literature, it is evident that the fixing of nails is an accepted method of treatment for femoral shaft fractures.
49. Discretion is given to the treating doctor to choose the line of treatment as long as the treatment chosen is an approved method of practice. It has been held by the Hon'ble Supreme Court in Kusum Sharma case cited supra that "89 ...VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession." (Emphasis supplied). Therefore, in accordance with 28 the Bolam test and principles laid by the Hon'ble Supreme Court it is concluded that the Opposite party was not negligent in the treatment rendered to the complainant Sri.Ramu.
50. Error in medical record The Opposite party fairly admits that in the discharge summary the operated leg was mentioned inadvertently as left leg when in fact the operative leg was the right leg due to clerical error. The complainant also has not mentioned any other place where such mistakes have occurred. It is not the case of the complainant that surgery has been performed in the wrong leg instead of the injured leg. Hence this Commission advises the Opposite Party's hospital to be cautious in preparation of medical records and avoid recurrence of such incidents.
51. The Savita Garg case was relied on by the counsel for the complainant for the proposition that burden lies on the hospital to justify that there was no negligence on the part of the treating doctor/ or hospital. It is the duty of the hospital to satisfy that there was no lack of care or diligence.
52. This Commission feels that in the case on hand this burden has been discharged by the Opposite party satisfactorily.
Issue 3. If the Opposite party is found to be negligent, what is the compensation to be given to the complainant?
53. As the Opposite party has not been found to be negligent in treatment of the complainant, the question of payment of any compensation does not arise. 29 Hence the issue 3 is answered accordingly. The counsel for the complainant has cited case laws of State of Haryana Vs Jasbir Kaur and ii) Oriental Fire and General Insurance co Vs PP Misri and others dealing with compensation. We have no occasion to apply the said citations as the complainant has been found to be not eligible for any compensation.
Issue 4.To what other relief, the complainant is entitled to?
54. In view of the findings in issues 2 and 3, there will be no order regarding costs.
In the result, the complaint is dismissed.
Dated this the 7th day of June 2023.
Sd/-
(Justice R. PONGIAPPAN) PRESIDENT Sd/-
(S.SUNDARAVADIVELU) MEMBER Sd/-
(S. OUMASANGUERY) MEMBER 30 LIST OF COMPLAINANT'S WITNESSES:
CW.1 09.07.2021 Ramu (Complainant)
CW.2 12.11.2021 Dr.Anand Kumar
CW.3 10.03.2022 Dr.G.Sriramulu
LIST OF OPPOSITE PARTY'S WITNESS
RW.1 15.07.2022 Dr.K.Sivadasan
LIST OF COMPLAINANT'S EXHIBITS:
Ex.C1 03.02.2016 Photocopy of First Information Report in
Cr.No.45/2016 on the file of SHO, Traffic PS
(South), Puducherry.
Ex.C2 10.02.2016 Photocopy of discharge summary issued by Sri Sai
Krupa Hospital, Puducherry.
Ex.C3 24,03.2016 Photocopy of medical bill issued in Duplicate by
Sri Sai Krupa Hospital, Puducherry.
Ex.C4 02.04.2018 Photocopy of discharge summary issued by
JIPMER Hospital, Puducherry.
Ex.C5 28.08.2018 Photocopy of Petition Monitoring System
acknowledgement issued by Government of
Puducherry Lieutenant Governor Secretariat.
Ex.C6 10.03.2016 Medical certificate issued by Sri Sai Krupa
Hospital, Puducherry in original.
Ex.C7 21.09.2016 Medical certificate issued by Sri Sai Krupa
Hospital, Puducherry in original.
Ex.C8 15.09.2016 Medical certificate issued by Sri Sai Krupa
Hospital, Puducherry in original.
Ex.C9 27.02.2016 Photocopy of salary and experience certificate
issued by Sree Hari Traders.
31
Ex.C10 05.09.2019 Copy of legal notice.
Ex.C11 07.10.2019 Reply notice.
Ex.C12 06.06.2011 Photocopy of aadhar card of the complainant.
Ex.C13 15.06l2017 X-ray of femur taken at opposite party hospital.
Ex.C14 17.03.2020 X-ray of right thigh taken at Aruna Clinical
Laboratory and X-rays.
Ex.X1 -- Photocopy of documents submitted to the
Series Lieutenant Governor, Puducherry, marked through
CW.3. (15 pages)
LIST OF OPPOSITE PARTY EXHIBITS :
Ex.R1 -- Photocopy of medical records pertaining to the
complainant (page no.1 to 45 from 04.02.2016 to
09.10.2017).