Loosening of Screws from plate post Orthpedic Surgery: Fortis Hospital directed to pay Rs 7 lakh compensation

Dharamshala: Holding Fortis Hospital guilty and vicariously liable of medical negligence by Orthopaedic Surgeon in providing treatment for fracture of right humerus whereby the screws and plate implanted on patient had loosened; the Himachal Pradesh State Commission dismissed its review plea and has directed the hospital to pay Rs 7 lakh compensation to the patient.

The case goes back to the year 2014 when the 80-year-old patient was admitted to Fortis Hospital with the fractured right humerus. She was operated upon by Orthopaedic Surgeon wherein plate and screws were fixed in right humerus of the patient.

Post-surgery, the patient felt severe pain on the operated spot and approached the hospital again. After X-Ray, it was observed that four screws of upper right bone were out of the plate and were loosened lying on tissues.

The patient later underwent another surgery at Columbia Hospital in Pune.

Thereafter, alleging medical negligence by the Fortis hospital and the surgeon, the patient moved the District forum which allowed the patient’s plea and directed the hospital to pay Rs 7 lakh as compensation along with litigation costs.

Aggrieved with the forum’s decision, the hospital approached the State Commission and sought relief.

Denying any medical negligence from their part, the hospital submitted that after operation post operated image was taken to check the fixation of fractured bone and it revealed that screws and plate were fixed in the fractured humerus.

Due to inadvertently putting weight on operated limb while getting up from the bed, the patient sustained severe pain in the operated limb, they submitted adding that there was slight displacement of the plate at the proximal end and loosened screws. Further, secondary support in the form of POP was given.

Noting the submissions, the question before the court that arose was whether appeal filed is liable to be accepted and whether Fortis Hospital is vicariously liable for dislocation of plate and screws fixed in the surgical medical operation of right humerus of the patient.

After going through the case, state commission opined that after post-operation the hospital and the doctor were under a legal obligation to keep the joint locked and were hence deficient in service.

“It is well-settled law that when joints are not locked and are kept in loose condition in that eventuality joints would not cement with glue in liquid which is generated from bone within. Non-locking of joints after surgical operation by opposite parties ipso facto amounts to deficiency in service on the part of opposite parties.”

The bench of Justice PS Rana (R) President and Ms Sunita Sharma as Member stated that plea of the hospital and doctor that plate and screws were dislocated due to the factum of putting pressure upon plate and screws when complainant tried to get up from bed is defeated on the concept of ipse dixit (An assertion made without proof).

Reaching its decision, the bench observed that the hospital had not filed the affidavit with the court which showed the displaced plate and screw in post OP site of right comminuted humeral fracture.

there is positive recital in the report submitted by Dr. Roshani Shukla that x-ray shows displaced plate and screw in post OP site of right comminuted humeral fracture. Opposite parties did not file affidavit of Dr Roshani Shukla who is Radiologist and who is best witness.No reasons assigned by Fortis Hospital as to why Fortis Hospital did not file the affidavit of Dr Roshani Shukla Radiologist who has examined and x-rayed complainant on dated 19.11.2014 when the complainant came in the hospital of opposite parties with a complaint of severe pain.”

The bench reiterated the well-settled law that if post-operational medical treatment is not proper then in that eventuality complainant is entitled to compensation.

It is held that factum admitted by Radiologist posted in Fortis Hospital vide her radiological report dated 19.11.2014 Annexure C-2 to the effect that X-ray shows displaced plate and screw in post OP site of right comminuted humerus fracture does not warrant further expert opinion in present matter…

… compensation Rs 7 lakh granted by Learned DCF/DCC is reasonable, equitable in nature keeping in view age of complainant who is senior citizen of India and keeping in view factum that complainant was forced to conduct subsequent medical surgical operation at Columbia Asia Hospital…

…complainant did not seek any relief against Ortho Surgeon who has conducted surgery personally and the complainant has sought relief against Fortis Hospital only. It is proved on record that at the time of medical operation in question he was an employee of Fortis Hospital. State Commission is of the opinion that Fortis Hospital is vicariously liable for the act and conduct of its employee.