M. THANIKACHALAM J, PRESIDENT
1. This is a complaint under Sec.17 of the Consumer Protection Act, claiming a sum of Rs.15,00,000/-, as compensation, since the opposite parties have committed, not only medical negligence, but also caused deficiency in service.
2. The brief facts of the complaint:
The complainant having come to know through newspaper, that the 2nd opposite party is lengthening the deformity in the legs, adopting Illizarov Right Fixator method, approached him on 22.5.95, for which treatment, he was admitted in the first opposite party hospital. After adopting all the necessary tests, surgery was performed on 25.4.95, under the process known Illizarov Ring Fixator and thereafter as inpatient, he was taking treatment, as instructed and as informed as if the bone will be growing, stage by stage in millimeter. The opposite parties have also informed, that the operation was success, and the length of the leg is growing further, advising to continue the physiotheraphy. The complainant taking physiotheraphy, was in the hospital till 11.5.95, on which date, he was discharged informing that his right leg attained the required height.
3. After the discharge from the hospital, the complainant also came to the 2nd opposite party, for review, and everytime, he was informed that not only the bones were united, but also required height achieved, thereby informing that Illizarov Ring Fixator, can be removed. As advised by the 2nd opposite party, the fixator was removed by the Assistant of the 2nd opposite party, by name Dr.Naresh on 22.11.95, and thereafter, he was advised to take rest. The complainant though reported pain and sufferings, he was advised that this problem will vanish in due course.
4. On 21.11.95, since the complainant had pain in the leg, had approached another orthopedic doctor, and showed the X-ray. The doctor, after examining the x-ray, opined that the length of the right leg femur was reduced to 5 cm., instead of lengthening, and not only that, because of the ring fixator, muscle tissues also spoiled, thereby compelling the complainant to walk with stick, increasing the deformity, from 45% to 80%, for which both the opposite parties should be held responsible, since they have alone committed negligent act, the future of the complainant questionable, and for the sufferings undergone by the complainant, and for the failure on the part of the 2nd opposite party, the complainant was put to untold sufferings, mental agony etc., and he was unable to carry on the business also, for which totally, the complainant is entitled to a sum of Rs.15 lakhs, as compensation. Hence the complainant, seeking a landmark justice, has filed this complaint.
5. The brief defence of the 1st opposite party, as follows:
M/s. Apollo Hospital Enterprises Ltd., should be represented by their Chief Executive, whereas the case has been filed against the Chairman, which is not maintainable.
6. Even as per the averments in the complaint, the complainant ought to have filed the complaint, before the consumer forum, within two years, since he was discharged on 11.5.95, whereas the complaint came to be filed only on 2.3.99, after the delay of 639 days, not maintainable, liable to be dismissed, as barred by limitation.
7. The 2nd opposite party Dr. Gopalakrishnan, is an independent consultant, not an employee of the 1st opposite party. This opposite party does not exercise any control over the 2nd opposite party, and as such there is no master and servant relationship. In this view, the 2nd opposite party, who is a competent orthopedic surgeon, has done anything, this opposite party is not liable to answer. There is no specific allegation against this opposite party, either for negligent act, or for deficiency in service, and on this ground also, this opposite party is not entitled to compensate the complainant, the imaginary claim. This opposite party has not committed any breach of duty, in the matter of treatment given to the complainant, whereas had exercised all reasonable care, skill and diligence. The complaint has been filed only to extract money, which is liable to be dismissed, with exemplary cost.
8. The 2nd opposite partys version, in brief as follows:
Te complaint is barred by limitation, even as per the own showing of the complainant, and on this ground alone, the same is liable to be dismissed. No reason was given, or explained to condone the delay.
9. The complainant, who was aged about 40 years in 1995, came to this opposite party, with fracture non-union of right femur, with loose intra-medullary nail in right femur (thigh bone), since the fracture was not united. His problem was a non-standing nature, commencing from his age of 14. Originally, after sustaining injuries to his right leg, and knee, he had operation elsewhere, and it seems he underwent a surgery in 1986, to correct his shortening deformity, in his right leg. After 5 months of surgery, as revealed by the records, the implants fixed in the previous surgery, failed, developing fracture non-union. To correct the same, he again underwent another surgery, and thereafter the complainant was with supportive calipers from 1986 to 22.4.95, when he approached this opposite party.
10. On 22.4.95, the complainant was admitted in the 1st opposite party hospital, after detail investigation, taking x-ray, for non-union of fracture alone, treatment was given, and in that process, Illizarov Ring Fixator was fixed, on his right femur, basically for the fracture to unite, for which alone the complainant had come to this opposite party. At no point of time, the complainant had consulted, for the lengthening of his leg, and this opposite party also never promised/assured to lengthen the leg. After surgery, the complainant was showing progress, and Illizarov Ring Fixator was done, which was healing. He was discharged from the hospital on 11.5.95, advising physiotherapy, and he went to his home, walking with the help of his crèches, thereafter on 22.11.95, the fixator was removed. The complainant was advised, non-weight bearing with thigh support, for a further period of 4 to 6 weeks. After 24.11.95, the complainant neither tried to contact this opposite party personally or otherwise, and he has not come back to the opposite party, even for review, and therefore this opposite party had no knowledge about the condition of the complainant, thereafter.
11. The complainant had a permanent disability, since he was 14 years of age, and had undergone three major surgeries. Only for the specific purpose of taking treatment, for a non-united fracture, or femur with a loose I/M nail, he came to the opposite party, not for any shortening of the leg. Normally lengthening of limbs is done, only if the shortening is more than 4 to 5 cm. Therefore, it is impossible to believe, that he had taken treatment for the shortening of his right leg femur, since it was only 2.5 cm. according to the complainant.
12. This opposite party alone, had introduced the technique of Illizarov Ring Fixator in this country in 1989, having taken training in foreign country, and so far he had treated more than 3000 cases successfully. Therefore, the averments against this opposite party is defamatory, and he will take appropriate steps, to proceed against the complainant. For the present condition of the complainant, this respondent cannot be made responsible at all, as far as this opposite party is concerned, there was no deficiency in service, in the matter of treatment given to the complainant, and he has not committed any breach of duties, cast upon him, while giving treatment also. For the above said reasons, there is no question of awarding compensation against this opposite party, either for a sum of Rs.15 lakhs, or for anyother amount, hence it is prayed, the complaint may be dismissed with exemplary cost.
13. On behalf of the parties, proof affidavits were filed, supported by 14 documents, on the side of the complainant, and 19 documents on the side of the opposite parties. The complainant examined himself as PW1, whereas the 2nd opposite party has been examined as RW1. From the pleadings and documents, following points are framed for determination, and they are:
1. Whether the claim of the complainant is barred by limitation, as contemplated under Sec.24A of the Consumer Protection Act?
2. Whether the 1st opposite party hospital is liable to pay any compensation, for the alleged medical negligence said to have been committed by the 2nd opposite party, in giving treatment to the complainant?
3. Whether the complainant approached the 2nd opposite party for fracture non-union or for any increase in the length of his shortened right leg?
4. Whether the 2nd opposite party has committed any negligent act, followed by deficiency in service, while treating the complainant?
5. Whether the complainant is entitled to compensation, if so to what amount, against which opposite party?
14. POINT NO.1
The complainant, admittedly had deformity, or permanent disability, in his right leg. He had undergone three major surgeries, apart from the treatment taken in the hospital of the 1st opposite party, under the 2nd opposite party. Originally, according to the complainant he had the permanent disability of 45%, which was increased to 80% by the negligent act, committed by the 2nd opposite party. Thus alleging medical negligence, as well as deficiency in service, as said above, a consumer complaint came to be filed, which is being ignored on various grounds, opposed, in which one of the defence is question of limitation.
15. Admittedly, the complainant came to the 1st opposite party hospital on 22.4.1995. After detail investigation, including taking x-ray, as admitted by complainant himself, which is also reiterated by the opposite party, a surgery was performed on 25.4.1995, using the technique called Illizarov Ring Fixator, on his right femur. After surgery, after post-operative care, the 2nd opposite party, realizing no more stay of the complainant, in the hospital is necessary, discharged him on 11.5.1995, giving advise to be followed, asking him to come for review. As advised, the complainant came to the opposite parties on 21.11.1995, on which date X-ray, was taken. According to opposite parties, X-ray showed good callous formation, indicating reunion of the bone or growth of bone, leading to healing of fracture. Therefore, admittedly on 22.11.95, fixation implanted on 25.4.95, was removed, either by the 2nd opposite party, or by his assistant Dr.Naresh, under the instruction of the 2nd opposite party, and thereafter he was discharged on 24.11.95. Thereafter, as pleaded by them, the complainant had not approached the opposite party, either for review, or for any treatment, or accusing the opposite parties, as if they have committed any deficiency in service. In this context, we have to see the pleadings in the complaint also.
16. In the complaint, it is said, on his return to Sivaganga, the same day, having felt unbearable pain, he consulted a doctor, at Madurai, who informed, on seeing the X-ray taken in the Apollo hospital, that the length of his right leg was, reduced further from 2.75 cm to 5 cm., i.e. shortening increased. It is also further stated, that he had problems in the upper femur soft tissues, destroying or spoiling tissues also. Thus it is seen, from pleadings, the complainant came to know about the medical negligent act, of the opposite parties, whether it is admitted or not, or proved or not, which we will discuss infra, on 24.11.95.In the complaint, no other date of cause of action, either expressly or impliedly given. In this view, for the purpose of deciding limitation, the date of cause of action should be taken as 24.11.95, or as contended by the opposite parties, the date of discharge also can be taken as the date of cause of action viz.11.5.95. In view of the stand taken by the complainant, that he came to know about the medical negligence, committed by the opposite parties, on 24.11.95, we are inclined to take this date, as the date of cause of action, for filing the claim.
17. A consumer, to have the relief, should come to the District Forum, State Commission, or the National Commission, as the case may be, within two years, from the date on which the cause of action had arisen. If the complaint has not been filed within the said period, there is a legislative mandate, as ruled by the Supreme Court, the State Commission shall not admit complaint, thereby, expressly prohibiting, to decide the time barred case, since the state commission has no jurisdiction. Giving the benefits to the consumer, if we take the date of cause of action as 24.11.95, instead of 11.5.95, the complainant ought to have filed the case, on or before 24.11.97. Admittedly, the complaint filed in a letter form, landed before this commission, only on 2.3.99, though it is dated 27.2.99, and the same was taken on file in the year 2000, i.e., clearly after two years. Therefore, it is to be held, that the complaint is barred by limitation.
18. The learned counsel for the complainant, attempted to say that, it is a continuous cause of action, for which we find no pleadings. The claim is based upon the negligent act, said to have been committed by the opposite parties, from the date of operation, and the complainant came to know about the defects, from the doctor of Madurai. That alone gives the original date of cause of action, and thereafter, there is no fresh cause of action, for filing a complaint. Hence, we find no difficulty in arriving a conclusion, that the claim is barred by limitation, thereby, we are constrained to conclude, that the complaint is hit by Sec.24A of Consumer Protection Act, entitling its dismissal.
19. The learned counsel for the complainant, further urged that as per order in MP.39/99, the delay was condoned, and therefore the question of limitation does not arise for consideration, at present. On perusal of the records, especially the order passed in MP.39/99, we are unable to subscribe our view, to the above said contention of the learned counsel for complainant. Though Sec.24A mandates, a consumer complaint, should land before the District Forum, or the State Commission, as the case may be, within two years from the date on which the cause of action has arisen, sub sec.2 contemplates relaxation in the sense, if the complainant had shown sufficient cause, for not filing the complaint, within such period, a complaint may be entertained after the period specified in Sub Sec.(1). As ruled by the Apex Court, only when the case was filed within two years, or if not filed, delay condoned, then alone the consumer forum can have jurisdiction to decide the consumer dispute. The complainant, realizing this position, on his own or after the return of the original complaint, filed an affidavit alone, which is numbered as MP.No.39/99, filing another affidavit also, at later point of time, seeking to condone the delay of 463 days, as seen from the affidavit. However, according to the opposite parties, the delay is more than 600 days.
20. This commission, when a petition has been filed to condone the delay, or seeking permission to entertain a petition, even after two years, should have decided the same on merit not to be postponed. If it is a question of dispute between the complainant and the Fora, or the State Commission, as the case may, the case is in time, or the case is out of time, then only to avoid the confrontation, deciding the question of limitation can be considered at later point of time, giving direction to the office to take the case on file, if it is otherwise in order. On the other hand, when the law mandates, State Commission shall not admit the complaint, if filed after two years, then, when a petition has been filed, seeking relaxation under Sec.25(A)(2), that should have been decided, vesting jurisdiction, or ousting jurisdiction. But, unfortunately, a disposal was given to MP.39/99, which reads âIn the peculiar facts and in the circumstances of the case, the Registry is directed to register this action in OPSR.No.571/99, as an OP, subject to the question of limitation. It is made crystal clear, that this OP can be numbered subject to the question of limitation to be considered as a issue during the course of enquiry alongwith the merits of the caseâ. The reading of the above order would go to show, this commission has not condoned the delay, whereas an erroneous procedure was followed, as if the limitation can be decided, at the time of main enquiry. If we follow the above order, as held by us, it should be concluded, that the case is bared by limitation.
21. We feel, we are conscious of the fact, and for the mistake committed by the commission, the parties should not be allowed to suffer, who has attempted/ adopted the correct procedure. On that basis, if we peruse the affidavits, filed in MP.39/99, we find no reason, to condone the delay of roughly more than 500 days, assuming that the complainant had undergone some surgery, after the discharge from the 1st opposite party hospital, that has not prevented or barred the complainant, from filing the complaint. In fact this complaint itself appears to have been filed through post, and the complainant would have adopted the same procedure, within the time, which he failed. Therefore, viewing the case on merit also, as far as limitation is concerned, as per order in MP.No.39/99, the case is barred by limitation, and this in view, the submission of the learned counsel for the complainant, the delay was already condoned, cannot be taken as correct. Hence Point No.1 is answered accordingly.
22. Even assuming, the suffering being a continuous one, there is a continuous cause of action (which cannot be), now let us see the case of the parties on merit.
23. POINT NO.2:
The 1st opposite party is the hospital, where the 2nd opposite party had performed surgery, for the complainant, utilizing the service of the hospital. It is also an admitted fact, as spoken by RW1 also, for the charges, bills should be drawn in the name of the 1st opposite party hospital, and the surgeon was paid separately. Thus it is clear, though the 2nd opposite party had performed surgery independently, being an independent consultant, the major role was played by the 1st opposite party in providing all kind of aids, such as nursing, other hospital equipments etc., In this view, though there was no master and servant relationship between the opposite parties, as held by the Apex Court in Smt. Savitha Garg Vs. The Director, National Heart Institute, reported in IV (2004) CPJ 40 (SC), the hospital also responsible for acts, or their permanent staff, as well as staff whose services temporarily requisitioned for treatment of patients. Therefore, though the doctor may not come, within the meaning of permanent staff, since the service of the 2nd opposite party was utilized by the 1st opposite party, the 1st opposite party also should be held responsible, which can be seen from the decision of the National Commission in Bombay Hospital and Medical Research Centre viz. Sharifabi Ismail Syed and Ors., reported in I (2008) CPJ 432 (NC), wherein it is held the doctors working in hospital are it employees, and the senior resident doctor, appointed by the hospital, committed blunder, which resulted in wrong reporting by consultant- Hospital jointly and severally liable. Therefore the stand or defense, taken by the 1st opposite party, in a way, they are not responsible for the mistake, if any committed by the 2nd opposite party, cannot be accepted, and for these reasons, we conclude, if the 2nd opposite party had committed any medical negligence, causing permanent disability to the complainant, then both should be held jointly and severally, thereby this point is answered accordingly.
24. POINT NO.3 AND 4:
It is the specific case of the complainant, that he approached the 2nd opposite party, in order to rectify the shortening of 2.75 cm., thereby to have equal level of legs, avoiding limping. Further, it is the case of the complainant, that the 2nd opposite party, instead of performing surgery, for lengthening the shortened right femur, had given treatment, for non-union of the bone fracture, which should be construed as negligent act. So, the main point or the crux of the matter, which should be seen in this case is, for what purpose, the complainant approached the 2nd opposite party, and what kind of treatment, the 2nd opposite party had given, to the complainant, and in that process, whether he had mislead the complaint or deviated from the procedure, thereby attracting the medical negligence.
25. The learned counsel for the complainant, invited our attention to Ex.B5, as well as the discharge certificate viz. Ex.A2, to prove that the complainant approached the 2nd opposite party, for shortening of the right leg, but the doctor, instead of giving treatment for lengthening the shortening of the right leg, committed negligent act, on performing surgery, for Non-union Right Femur sustaining on injury/fracture, which should be construed as negligent act. In Ex.A2, the discharge summary issued by the 2nd opposite party, we find reference, regarding shortening of right femur, and the complainant had this problem, probably from the age of 17 years, as indicated in the history. For shortening or for fracture, or for non-union of the fracture, the complainant got operated thrice, and he was with calipers. Once again, the implant failed, for which he underwent one more surgery, and at that time I/M nail was put. It is seen, the doctor, has recorded all these facts, including shortening right lower limb, since 8 years, and treatment was not given for them, and the diagnosis was âfracture in his union right femur, with loose IM nail with situâ. The procedure adopted was Illizarov Right Femoral External Fixation. Generally, the doctors after diagnosing clinically, as well as testing, diagnosis the problem, and for that problem alone, treatment is given. In this way alone, as seen from the discharge certificate, as well the case record, the problem of the complainant, whatever may be his purpose of approaching, was diagnosed, as fracture non-union right femur, and it was not diagnosed as shortening right lower limb, proposing treatment for that, viz. lengthening the right leg. While, preparing the discharge summary, or maintaining the case record, neither the 2nd opposite party, nor the 1st opposite party, would have thought, of that they may be compelled to face, this kind of litigation, and therefore there is no question, of preparation of records also, in anticipation of the problem. What they diagnosed, what for they have given treatment, should have been recorded. It is futile on the part of the complainant, now to content that he had approached the 2nd opposite party, for lengthening the right leg, since he was suffering from shortening of the right leg, due to previous surgery or otherwise.
26. In the patient registration record, including case record, it is said, the complainant presented with the history of shortening right lower limb, for the past 8 years. Taking advantage of this, an attempt was made on behalf of the complainant to say, he approached the 2nd opposite party, only for shortening right lower limb, learning that the 2nd opposite party is performing surgery for lengthening the shortened portion, for which we do not find any case record. Doctor, has recorded under the heading history, what they have ascertained from the complainant, that does not mean, for that purpose the complainant approached the doctor as patient. In order to have better treatment, or give better treatment, doctors used to ascertain the history, the nature of disease, its previous history, how had occurred etc., and record the same, that cannot be taken as such, the patient approached for treatment, for that alone, and that is why, as said before, diagnosis should be seen, which does not say, the complainant approached for lengthening, the shortened leg, whereas he approached for fracture non-union. The history further would suggest, if at all, he had undergone for lengthening elsewhere, and despite he noticed no improvement, causing further problem, since he has to walk with thigh mold caliper support. Therefore, for that purpose alone, he should have approached the 2nd opposite party. In this context, we have to see, the technique adopted by the 2nd opposite party, and for which kind of treatment, the technique is used viz. llizarov technique.
27. Qualification of the 2nd opposite party, is not under shadow, and admittedly he is a leading orthopedic surgeon, who has introduced the method Illizarov Technique, in treating the patient and following. Illizarov technique was invented by Professor Illizarov of Russia, from whom, the 2nd opposite party had taken training. Illizarov technique viz. Ring fixator, is used as spoken by RW1, for number of purposes, and mainly (1) limb lengthening (2) for deformity correction of limbs (3) for fracture management and fracture non union. The case so spoken by RW1, not in dispute. It is the case of the 2nd opposite party, supported by literature also, that if a person has the shortening of less than 2.75 cm, limb lengthening is not adopted, or surgery was not performed. This can be seen, from the literature âInequality greater than 2.5 cm needs treatment, which may amount to not more than a shoe raise, or it may involve an operation to either the shorter or longer legâ. Further under the heading lengthening shorter leg, it is said âLimb lengthening by the Illizarov method is a suitable method for predicted length discrepancies of greater than 5 cm., Distraction osteogenisis has become much safer since it was appreciated that distraction has to be slow if neural or vascular damage is to be avoided. Major length corrections can be tackled by staging the treatment process over several years, or by attempting to lengthen at two levels within the same bone (bifocal lengthening). The later method, although attractive, has a higher rate of complications largely from the soft tissues being distracted too quicklyâ. A computer printout was given, wherein it is said âpatients with discrepancy of less than 3 cm. should avoid bone lengthening and go in for other alternatives. Bone lengthening is appropriate for discrepancies between 3 cm. and 40 cm.â Therefore, a well known person, who has introduced this technique in India, would not have ventured to lengthen the complainants right leg, if it was less than 3 cm. In this context, we have to see, what was the shortening, the complainant had, when he approached the 2nd opposite party, to ascertain whether the complainant would have taken treatment, for lengthening his shortening leg, or for non-union of fracture, or the 2nd opposite party would have accepted.
28. After the admission of complainant on 22.4.95, he was clinically, physically examined by the doctor, and when they have tested the range of movement, it is said âInfra trochanteric femoral shortening 2.75 cm.â. From the case record, we find, no where it is said, shortening was above 2.75 cm., or 5 cm., as the case may be, warranting or compelling the 2nd opposite party to perform surgery, for lengthening his right femur or right leg. Therefore, we are of the considered opinion, the complainant should have approached the 2nd opposite party, only for fracture non-union of right femur, with loose I/M nail and that is why, it was diagnosed so, and the method of Illizarov was adopted, since that technique is also used for fracture non-union, or fracture management, as the case may be, and that is why, while taking the consent of the complainant also, it is said Illizarov external fixation, and it is not said, surgery was performed or consent was obtained for lengthening the leg. The method of treatment noted in the consent, is not in dispute, though obtaining consent immediately before the operation, is in dispute, which we will discuss infra. In the operation notes also, it is said, âunder ET GA, Illizarov External Fixator was fixed on right thigh, for treating fracture non-union right femur middle 3rd â, as seen from operation notes.
29. The learned counsel for the complainant, invited our attention to Ex.A8 and A9, to prove that the complainant, had thigh shortening right side, 5 cm. after surgery, though it was 2.75 cm., originally, and in this view, according to him, applying the doctorine of res ipsa loquitor, it should be concluded that the 2nd opposite party, has committed negligence. By going through Ex.A8, as well as the oral evidence of PW1, that too, in the absence of proof affidavit, of the doctor who has given Ex.A8, and who was not examined, it is impossible to rely Ex.A8, so as to come to the conclusion, that the complainant had the shortening of 5 cm., after surgery performed by the 2nd opposite party on 25.4.1995, or after the removal of the fixator on 22.11.95. In Ex.A8, we find a reference informing âold case of fracture right femur. Was initially fixed with 2 screws which failed and later fixed with plate and screws which also subsequently broke and later fixation with med with Ilisarov fixator. Patient sustained injury and now presented with inability to walk bilateral blue sclera + Tenderness + M/3 Right Thigh Shortening Right side 5cm Frontal bossy+â. Ex.A8 was given by the Institute of Orthopedic Research and Accident surgery, run by Dr. Devadoss. He has also given a certificate, as seen from Ex.A9, that the complainant underwent several operations, including Illizarov treatment, because of the complication, and he has the permanent disability of 80%. Based upon these two documents alone, compensation was sought to be quantified, as we have already adverted to above. The doctor who has given these two certificates has not been examined, and admittedly he has also not filed any affidavit.
30. The learned counsel for the opposite parties to demonsrate, how a false certificate has been given by a doctor, exaggerating the permanent disability, invited our attention to the manual for doctors, to evaluate permanent physical impairment. In the guidelines, 80% of permanent physical impairment is available, in the case of limb amputation above elbow upto lower 1/3rd of arm, and above knee upto lower 1/3rd of thigh, thereby showing, mere shortening will not come, within the above said percentage of disability. Admittedly, there was no amputation for the complainant, and this being the position, it is not known, how the doctor has certified, that the complainant is having 80% of the disability, which shows, the falsity of the complainants case. Ex.A13 is also, a certificate issued by the same doctor, as if the complainant was under his care from 1995 November to 1999 January, and he was bed ridden. PW1 admits candidly, that the doctor had not seen him, while issuing Ex.A9 and A13. Thus it is demonstrated, a doctor has issued a false certificate, or incorrect certificate including assessing the disability of a person, to the extent of 80%, without examining him, and therefore, it is impossible to lay any strengthen, on the said certificate, to fix the alleged medical negligence, said to have been committed by the 2nd opposite party, and in this view, Ex.A8, A9 and A13, cannot be taken into consideration for proving the case of the complainant. Admittedly, the complainant has not examined any expert doctor, to find fault, the treatment given by the 2nd opposite party. The principle of res ipsa loquitor is not applicable in this case, since it is not made out, that because of the surgery performed by the 2nd opposite party alone, the shortening, which was originally 2.75 cm. extended to 5 cm., and therefore the question of res ipsa loquitor fails to act. This being the position, then we require expert opinion, as repeatedly held by the courts, in order to prove the medical negligence, enlightenment by an expert, is a must, which is absent in this case.
31. PW1, though has repeated the averments in the complaint, would admit during the cross examination, though he was informed by the doctor, that in order to unite bone, fixator was fixed under Illizarov technique, adding that for lengthening also, the same technique was adopted, which does not find place, in the case record. He has also further admitted, he did not know, whether operation for lengthening will be adopted, if the shortening was 4 cm to 7 cm. It is admitted by him, on 24.11.95, fixator was removed, i.e., by the opposite party. It is also admitted by the complainant, that the 2nd opposite party has not given any written assurance, about the lengthening of the shortened leg. Further, even before the filing of the case, the complainant has not issued any pre-suit notice. Thus, in our considered opinion, the complainant has miserably failed to prove that, he approached the 2nd opposite party, for improving the shortening of the right leg, whereas it is made out by records, that he was admitted, and surgery was prformed only for non-union of the right femur, with loos intra medullary nail in the right femur. Therefore the submission of the learned counsel, that a wrong surgery was performed by the 2nd opposite party, that should be brought under the negligent act, is unacceptable to us.
32. The surgery was also found fault, even for reunion by the learned counsel for the complainant. As seen from X-ra and X-ray report, there was formation of callous, indicating growth of bone, and that is why fixator was removed, as spoken by RW1, as well, as evidenced by X-ray. The 2nd opposite party, as RW1, has given categorical evidence, stating when a callous appears on X-ray, the fracture is presumed to be united, which evidence, we have to accept. According to RW1, the complainant did not have any treatment for limb lengthening and the procedure known for limb lengthening viz. Corticotomy surgery, was not done on the complaint, and that is why also we find no reference in the case record. It is the further case of RW1, that he had performed surgery, for non-union of fracture and the X-ray taken on November 21st, showed good callous formation, across the fracture site, indicating fracture was united, followed by removal of the fixator. It is the further case of RW1, that after 25.11.95, the complainant did not contacted him, either for review, or for anyother treatment. He has also further deposed the ring fixator, does not damage the thigh muscles, or any soft tissues, which is one of the allegations, against the procedure adopted by RW1. RW1 further clarified as per Ex.A7, callous formation at the fracture side broken, indicating reunion at the fracture side, for which the 2nd opposite party has nothing to do, since according to him, he strictly followed standard treatment, to be given in this kind of case, viz. non-union of fracture. The evidence given by RW1, is infirmity with records maintained by him, and therefore, we are constrained to accept his evidence than the motivated evidence of PW1. RW1 asserted, that the complainant never consulted for the shortening of legs, though he admits in Ex.B5, âshortening right lower limbâ, scored out, that does not mean, the complainant has approached the opposite party, for taking treatment for shortening of the leg.
33. On 25.4.1995, the fixator was removed, and according to RW1, he has personally removed the fixator, whereas it is said, one Dr.Naresh has removed the external fixator, thereby we find some contradiction, and on that basis, an argument was sought to be built up, there was delegation of power, not permissible, should be construed as negligent act. Assuming for the purpose of this case, Dr. Naresh had removed the fixator, under the supervision of the 2nd opposite party, or under the advise of the 2nd opposite party, that had not caused any problem, to the complainant, and therefore on that basis, negligent act or deficiency in service, cannot be slapped, upon the opposite party.
34. It is an admitted position, that consent should be obtained before any surgery. In this case, as seen from the records, on 23.4.1995, consent was obtained, from the complainant to undergo Illizarov External Fixation. Case records would reveal, that original operation was fixed on 24.4.95, but the same was later postponed to 25.4.95, on which date, admittedly Illizarov Ring Fixator was fixed, on the complainants right femur, for which no separate consent was obtained. Therefore, the learned counsel for the complainant, urged before us, that proper and legal consent was not obtained from the complainant, before surgery, and in this view, the act of the 2nd opposite party should be brought, within the meaning of negligent act. From the records it is not known, under what circumstances, the operation was postponed, though consent was obtained on 23.4.95. In the consent form, we do not find any date of surgery.
35. On 22.4.95, doctor instructed his juniors or the nurses, to obtain consent, and pursuant to same, nurses chart also would indicate the case was posted, for Illizarov External fixation on 24.4.95, informing consent was also obtained. But as said above, it was postponed to 25.4.95, on which date, we find a note, regarding the consent obtained, probably on 23.4.95. After that, there was no change, in the condition of the patient, and there was no other operation, except Illizarov External Fixator, and in this view, we feel no fresh consent was necessary, and the consent obtained already on 23.4.95, will serve the purpose, that too, considering the fact, consent should be taken 48 hours before the date of surgery. Therefore, on the basis of improper consent also, as claimed by the complainant, we are unable to fix any medical negligence, or deficiency in service, on the part of the opposite parties.
36. We are constrained to say, in this case, except the bare pleadings, even there is no proof by way of affidavit, though the complainant has given evidence, which fails to satisfy the requirement of proof, in the proof affidavit, except the claim made, and the documents relied on, nothing is said, regarding the alleged negligence, said to have been commenced by the opposite parties, and in this view alone, we have already pointed out, expert evidence is a must, and non-examination of expert witness, should be construed as fatal to the case.
37. The learned counsel for the complainant also urged before us, that the premature removal of fixator by the 2nd opposite party, should be construed as deficiency in service. As indicated above, verifying that there was union, in the form of callous formation, fixator was removed, that cannot be defined, as premature removal, and therefore, on this ground also, we are inclined to reject the case of the complainant. For the foregoing reasons, we conclude, that the complainant, had approached the opposite parties, only for the fracture non-union of right femur, for which, following the procedure, the 2nd opposite party performed Illzarov Right Femoral External Fixation, was done by surgery, not offending any protocol, or deviating any procedure, and therefore the complainant is not entitled to any relief, against the opposite parties. Admittedly, the complainant was having this kind of fracture problems, from his teen age, and he was prone to fracture and there might have been every possibility, for this man to sustain fracture on his own, and unable to rectify the same properly elsewhere, then only, he approached the 2nd opposite party, and in the treatment given by the 2nd opposite party, we find no negligence, and deficiency in service for the reasons recorded. Hence these two points are answered, against the complainant.
38. POINT NO.5:
In view of our findings, in the previous points, the complainant is not entitled, to any compensation. This point is answered accordingly.
39. In the result, the complaint is dismissed. Parties are directed to bear their respective costs.