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17.1 Learned Senior Advocate would further submit that insofar as the opinions of the doctors, as relied upon by the petitioner in the complaint is concerned they fulfill the requirement of the guidelines set out by the Hon'ble Apex Court in case of Jacob Mathew (supra). Learned Senior Advocate would in this regard refer to the opinion of Dr. Kirit Shah which according to learned Senior Advocate would show that the concerned doctor had observed two different X- rays i.e an X ray dated 14.07.2012, which is prior to surgery and an X-ray dated 16.07.2012 i.e. post surgery. Learned Senior Advocate would submit that the first X-ray, as per the doctor concerned, reveals that the right (normal) NSA (Neck Shaft Angle) around 130 degrees whereas a fracture was noticed in the left NSA ( Neck Shaft Angle). Learned Senior Advocate would thereafter refer to the second X- ray and it is observed that Dynamic Hip Screw (DHS) is fixed at varus and whereas hip screw tilting approximately 10 degrees upward relative to neck axis. Learned Senior Advocate would submit that while the terms are absolutely medical terms but what is meant to be stated is that the hip screw, was not implanted at proper place rather it was implanted approximately at the tilt of approximately 10 degree upward.

R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022

18. Learned Senior Advocate would thereafter emphasize on diagnosis of the doctor concerned which reads as thus: "Post operative Coxa Vara, high greater trochanter on left side; resultant left limb shortening by ¾ inch." Learned Senior Advocate would rely upon definition of the term "Coxa Vara" in a website "Wikipedia" which defines the term "Coxa Vara" as being deformity of the hip, where femoral of the neck shaft angle is decreased to show as less than 120 degree. Learned Senior would submit in this regard that if the X- ray which was taken pre- operation on 14.07.2012 and as examined by Dr. Kirit Shah, as per the report would reveal that said left shaft angle (NSA) was around 130 degrees and whereas it would reveal from the diagnosis that post operation, the femur of left shaft angle has decreased less than 120 degrees, which deformity is termed as "coxa vara". Learned Senior Advocate would submit that the report was absolutely clear and the opinion being that on account of error in operation which led the formation of "coxa vara" i.e. there had occurred deformity in the hip of the complainant which had resulted in the left limb shortened by ¾ inch. Learned Senior Advocate would submit that the same had occurred on account of the hip screw which was not inserted at the right place by the doctor concerned and whereas hip screw had been implanted at the tilt of approximately 10 degree upward.

35. In the instant case, the complainant in his complaint alleges that the petitioners doctors had operated the complainant and had fixed implant and on account of the doctors' not following the recommended protocol of positioning the hip screw, the same had resulted in the complainant having difficulty in walking and whereas while walking without a stick his left leg had poor balance and that he could neither walk more than a few steps that too with a mark limp and lurching gait, whereas he could not also climb stairs with his left leg. In support of his allegations in the complaint the complainant has relied upon opinion of one Doctor Kirit M. Shah who is R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 an Orthopedic Surgeon ( M.S. Orthopedic) and one Dr.Harshvadha Hegde who is Director, Orthopedics, Spine Surgery and Joint Replacement at Fortis Hospital, New Delhi. Dr. Kirit Shah in his opinion dated 06.02.2013 notes the history of the complainant of having a fracture on 13.07.2012 and having an operation done on 14.07.2012. The said doctor also notes the complaints of the complainant. The said doctor in his observations has perused the X-ray taken at pre-operation stage on 14.07.2012 which shows the right (normal) NSA i.e left shaft angle around 130 degree and a fracture on the left basi-cervical. The Doctor also observes the X-ray done at the post operative stage on 16.07.2012 and observes DHS fixed in varus. It also mentions that hip screw was tilting approximately 10 degree upwards relative to neck axis giving left NSA of approximately 120 degrees. The said doctor has also observed the post operative X-ray of 23.08.2012, 12.10.2012 and 23.01.2013 wherein he notes that the DHS is in-situ undistorted and in the CT scan he notes that DHS is as before and there is a varus of approximately 15 degrees. The doctor notes that there is no implant failure and whereas the fracture appears to be united in X-ray whereas in CT it is seen as partial union. Most importantly in his diagnosis the doctor states that there is post operative coxa vera and high greater trochanter on left side resulting in left limb shortening by ¾ inch. The doctor also recommends treatment being surgical correction of left coxa vera and level correction of greater trochanter for full mobility of abductor muscles and normal level arm attainment and achieving correct limb length.

36.3 Apart from the opinions of the doctors concerned it would also be beneficial to refer to the complaint, where the complainant has inter alia alleged that after the operation, the operating doctors had opined that everything is normal, yet on account of the physical difficulties faced by the complainant, he had visited the doctors for follow up treatment and whereas at every time he was told that everything was well. That the complainant having decided to get a second opinion since things were not getting better he had got an X ray done which shows that fixing of the plate and screws was at the lesser angle than the normal positioning . Upon his request he had been given copy of IITV ( Image Intensifier Television) given to the patient at the time of discharge and whereas the said DVD also showed that the left leg of the complainant had shortened by one centimeter. Then upon taking second opinion it was revealed that the hip screw had been implanted at an upward angle of 12 degrees, and whereas the neck shaft angle (NSA)of the left leg of the complainant was fixed at an angle of 118 degrees giving him a deformity called Coxa Vara. That the deformity was seen from day one in the IITV (Imagine Intensified Television) and whereas according to the complainant the surgeons could have corrected the alignment of the hip screw after seeing the guide pin under the IITV but did not do so. That no follow up treatment was also carried out by the doctors. That even the consulting Radiologist also saw the defects of X ray images but did not choose to report the same and all these had resulted in the complainant R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 requiring a corrective surgery. The complainant has inter alia alleged that the surgeons knowingly fixed the NSA in a serious varus and did not apply proper traction to position the greater trochanter correctly. That the surgeons know the results would make the complainant disabled and unfit for his service yet they misguided him. The Radiologist colluded with the surgeons by not reporting a defect and the treating facility being Sterling Hospital is also liable for acts of commission and omission on part of the doctors.