Faulty ORIF Bone surgery: Doctor, hospital directed to pay compensation to patient
Delhi: In a case of medical negligence, the consumer dispute redressal forum, Kannur has issued an order directing a doctor and a hospital to pay a compensation of Rs.1,50,000 to a patient after finding a deficiency in service on part of the doctor who performed ORIF Bone surgery wherein grafting with bepedical flap coverage was done after general anesthesia.
The patient (complainant) had alleged medical negligence on part of the doctor and the hospital and stated that he had to be bedridden and his fractured bone did not heal due to a negligent operation conducted by the doctor.
The patient had met with an accident and was immediately admitted to a hospital. The doctor treated the complainant and on 19/1/2002 surgery ORIFT Bone grafting with bepedical flap coverage was done after general anesthesia. He submitted that after the surgery, he was told by the doctor that the pain will be alright within a short time. Later it was found that the screws fixed to the steel rod were shaking and it had come out from the position fixed and the patient had to be admitted to the hospital. Two screws and PTB were removed from the steel rod and they applied PTB cast over the fractured part in addition to the steel rod already fixed.
The complainant was having acute pain over the fractured part of the leg and he was discharged with advice to review after one week. The pain was persistent over the fractured part and afterward, an X-ray found a non-union of bone but he was advised to have some pain killers. Since the pain was existing, he met the doctor and he was advised to undergo bed rest with medicine.
The patient submitted that during this period, he was totally bedridden and was unable to walk. There was puss and the skin over the operated part had lost also, the steel rod fixed was shaking. Hence the doctor admitted him and removed the implanted steel rod from the leg. Then the leg was hanging. The doctor did fibular osteotomy and a patellar tendon bearing cast was applied for 8 weeks.
After the cast was removed, the mobility over the operated part of the leg was affected. Hence, he was advised to undergo illizaro fixation. It was alleged by the patient that during the treatment of 2 years under the doctor, he suffered much pain and was bedridden and the fractured part did not unite due to the negligent operation. He submitted in his petition that when he consulted another hospital, on examination the physician of that hospital was surprised to see that the treatment till then made by the doctor was manifestly wrong and the reason for the non-union of the fracture was due to surgical operation and post-operative treatment given was in a negligent manner.
Alleging that the wrong and negligent treatment resulted in partial deformity and disability on the affected part, he filed a complaint with consumer forum.
It was contented by the doctor and the hospital that after admission, the patient was diagnosed to have a comminuted fracture of lower 3 tibia and fibula right side. The patient had other injuries like a lacerated wound over the chin and abrasions over the face and anterior the aspect of the left leg. The patient was given appropriate medicines in the post operative period and there was no wound infection in the post-operative period.
The counsel for the hospital and the doctor added that the initial treatment of ORIF with bone grafting for bone loss and later fibular ostotomy when non-union was noted and finally the suggested illizarou fixation, were the appropriate treatment measures for the complicated fracture of the complainant and also submitted that the plate and screw implant given after ORIF and bone grafting treatment for the complicated fracture of the complainant was maintained for a period of 2 years as the appropriate treatment and due to inherent poor healing properties in the complainant.
The counsel for the opposition further submitted that they had given only approved standard analgesic medications. So standard treatment of fibular osteotomy was done.
The doctor contended that there is no negligence or deficiency of service. It was pleaded that non-union was not because of the poor inherent fracture healing properties of the complainant. It is also pleaded that the initial treatment of ORIF with bone grafting for bone loss and later fibular osteotomy when non union was noted and finally suggested illizarou fixation when the persistent non-union was noted were the appropriate treatment measures for the complicated fracture of the complainant.
After considering the submission of both the parties, the commission noted that the discharge summary of the second hospital showed -- at the admission time " non union (Rt) tibia and fibia minimal "callus seen ". On this, the bench observed that the contention of the doctor ad the hospital that the continuing non-union in spite of the appropriate nature of the fracture and due to inherent poor healing properties in the complainant and on 3/3/2004 check X –ray with the cast was done which was showing good callus, are baseless.
The court added, " in such cases, it is for the hospital or the doctor concerned to discharge the burden of proving that no negligence was committed and all appropriate treatment was made at the appropriate time and also about the dose and the medicine given to the patient and also improvement of treatment shown in X-rays taken in the hospital as claimed by the doctor because , we are unaware about the change of result shown in X-rays. The court also found that principal of Rep Ipsa Loquitur i.e. "the facts itself speak and tell their own story" is squarely applicable considering the sequence of events, selection of treatment adopted and medicine given by the doctor.
The court found the doctor and the hospital guilty of medical negligence amounting to the deficiency in service.and ordered compensation to the patient,
on consideration of the case and the medical records before us, we are of the opinion that the doctor is guilty of medical negligence amounting to deficiency in service. Since doctor nd nd was working in 1 OP hospital there is vicarious liability on the part of 1 opposite party st st hospital also. So both opposite parties are liable . In the result complaint is allowed in part. Opposite parties 1&2 are directed to pay Rs.1,50,000/- as compensation to the additional complainants for the deficiency in service and professional negligence on the part of 2 opposite party. Opposite parties are further directed to nd pay Rs.25,000/- as cost of the proceedings. Both opposite parties are jointly and severally liable to pay award amount. 1/4 of the award amount is entitled to each complainant. The order is to th be complied with within one month from the date of receipt of the order. Failing which the amount of Rs.1,50,000/- will carry interest @8% per annum. The complainants are at liberty to recover the amount as per the provisions of Consumer Protection Act 2019.
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