Complications are Inherent in any Surgical Procedure: Consumer Court exonerates orthopaedic specialist of Implant Failure

Dismissing the complaint against the doctor, the consumer court noted, "From medical literature provided it is apparent that in any surgical procedure, complications are inherent. The X-ray revealed implant failure and the decision to conduct the second surgery as imminent. This cannot be construed as a shortcoming or medical negligence."

Further noting that the root cause of complications lie in the 7 years old injury of the complainant, the Commission observed, "The proper fracture alignment and stability are lacking in the complainant's case as it is an old injury and he has not provided any records of the treatment undergone at Osmania General Hospital (7 years ago) after the initial injury."

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The case goes back to 2012, when the complainant had visited the treating doctor due to severe pain in the elbow which he had developed 7 years back and had underwent treatment in Osmania General Hospital, Hyderabad. After the treatment, he was advised to undergo physiotherapy as well.

However, as the pain persisted, the complainant visited the treating doctor back in 2012 and he was assured by the treating doctor that he would be free of pain and stiffness in the right-hand post-surgery. Accordingly, the complaint underwent surgery back on 27.02.2012.

As the pain continued, the complainant consulted the treating doctor again and he was informed that the pain was due to implant failure and the X-ray had revealed that the bone was completely dislocated.

Consequently, the Complainant approached the NIMS and underwent two other surgeries and alleged before the Consumer Court that these second surgeries became necessary due to the medical negligence by the treating doctor and hospital.

Filing the complaint under Section 17(1) (a) (i) of the Consumer Protection Act, 1986, the complainant alleged deficiency in service on the part of the doctor and the hospital and demanded compensation of Rs 4 lakhs towards the loss of monthly salary for 20 months, Rs 72 lakhs towards causing loss to his financial earning capacity due to the medical negligence in conducting operation to his right hand elbow, and Rs 20 lakhs towards damages for causing mental agony and financial stress.

On the other hand, the hospital authorities contended that the treating doctor was only a consultant doctor in their hospital and the hospital only facilitated by providing the infrastructure and are in no way responsible for the partial disability suffered by the complainant.

The treating doctor, on the other hand, contended that when the complainant first approached him, he examined him and found that the complainant had a malunited supra condylar fracture humerus leading to cubitus varus deformity.

Submitting that he is a regular consultant at the treating hospital, the doctor further admitted that he had conducted an operation and had advised the patient for suture removal after 10 days. He submitted that at the time of suture removal, the wound was healthy and thus the patient was advised foe a further check up after 45 days.

During the routine review, the X-ray revealed that there was "slipping of wire from the screws leading to implant failure', submitted the doctor and he further informed the Commission that he had asked the complainant to wait for one month and if the same condition persisted he had assured of conducting a second operation, free of cost if required.

The doctor further informed the Commission that he had adopted the standard methods of treatment and the patient was given all the required assistance. He also argued that the patient suffered a set back and this cannot be established as medical negligence in the absence of any evidence.

To prove his case, the doctor further referred to the Discharge Summary provided by NIMS, which had mentioned, "concerned nerve was damaged due to screwed up with piece of bone at the time of operation" and sought the dismissal of the complaint.

After listening to all the contentions, the Consumer Court also noted that the Complainant had not provided any record pertaining to the treatment that he had underwent six years ago.

While going through the medical literature related to the case, the Commission noted that Cubitus Varus can be understood as bow elbow or gunstock deformity and the result of malunion occurring as a compilation of supra condylar fracture of the humerus.

The Commission also noted that the Complainant had admittedly suffered the fracture almost 7 years ago and observed that "correction of deformity after so many years is difficult due to tight soft tissue structures."

Further noting that the main complications of cubitus varus correction are lateral prominence, incomplete correction, loss of correction, nerve palsies, infection, and re-infection, the Commission also observed,

"The opposite party no. 2 (the orthopaedic specialist/ treating doctor)cannot have guaranteed complete success after the surgery. There are various consequences like secondary fractures, lateral disability, and nerve palsies."

"In the instant case, the deformity was untreated for a long time and PLRI is occasionally unmasked after surgical corrections. The complainant's complaint was for treatment of an old & established non union of the humerus and this remains controversial," further noted the Commission.

"Cubitus Varus deformity is the commonest complication after a neglected or badly managed displaced supra condylar fracture and undoubtedly it was neglected for more than six years in the instant case," observed the State consumer court.

Further referring to the Discharge record of NIMS, the Commission added,

"The records submitted by NIMS does not in any way refer to the surgery performed by opposite party no. 2 as being negligent or deficient. They only state that the patient had history of RTA (7 years back and injured right elbow, managed conservatively with Above Elbow Slab Support- developed elbow stiffness underwent corrective osteotomy and radial nerve palsy developed and also non union of right humerus."

While considering the question whether the treating doctor had performed the corrective surgery negligently, the Commission noted,

"By strictly adhering to the operation technique, the severity of complications can be reduced but not guaranteed. The NIMS Case sheet in no way refer to the opposite party no. 2 conducting the surgery without skill or care. The proper fracture alignment and stability are lacking in the complainant's case as it is an old injury and he has not provided any records of the treatment undergone at Osmania General Hospital (7 years ago) after the initial injury."

"Non union of humerus shaft is known to occur, particularly where patients seek treatment from traditional bone setters. When non-union does occur, it is very difficult to treat and often requires multiple procedures to achieve union. There is no record of the severity of the initial trauma, pattern of fracture or treatment taken," further added the Commission.

Thus, observing that the medical negligence is not conclusively established against the treating doctor, the Commission further noted,

"From medical literature provided it is apparent that in any surgical procedure, complications are inherent. The X-ray revealed implant failure and the decision to conduct the second surgery as imminent. This cannot be construed as a shortcoming or medical negligence."

Dismissing the complaint, the Commission, in this context, referred to the Supreme Court judgment in Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others, 1996, where the top court had held that since the skill of medical practitioners differ from doctor to doctor, as long as a doctor acts in an acceptable manner it would be difficult to hold the doctor guilty of negligence.

To view the Commission order, click on the link below.

https://medicaldialogues.in/pdf_upload/medico-legal-telangana-161822.pdf

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