No negligence: NCDRC relief to Orthopedic Surgeon told to pay compensation to patient for second surgery for fracture
UP: Holding that the doctor is not guilty of medical negligence, the NCDRC has rejected the claim of the patient where it was alleged that he had to go through surgery twice due to the inefficiency and negligence of the doctor.
The court observed that no deficiency or medical negligence on the part of the doctor was established.
The case goes back to the year 2000 when the patient went through a scooter accident and suffered a fracture to his left hand. Initially, he consulted a doctor at Deoria. An X-ray showed a fracture of Humerus (arm) and took treatment for 4 days. Thereafter, he approached another doctor at his Orthopaedic Hospital at Gorakhpur. The doctor examined the patient and advised for surgical correction of the fracture and the patient got admitted in the particular Hospital.
The patient underwent surgery on 13.08.2000 and fixed the Titanium Closed Interlocking Rod in the fractured Humerus bone. In his complaint, he alleged that the rod and the screws were oversized and were not fixed properly. It was further alleged that the doctor examined the X-ray of the patient's left arm which showed the interlocking rod and screws were oversized and a gap visible between the broken bones but he was discharged from the hospital a few days later.
Thereafter, when his condition did not improve, the patient got himself examined in the District Hospital, Deoria and the fresh X-ray showed that the gap was more and the bones were not united and he had to undergo another operation.
Being aggrieved, the Complainant alleged negligence during the operation and filed a complaint before the State Commission.
Opposing the allegations of the petitioner, the hospital and the doctor stated that the operation of Titanium closed interlocking rod was done as per the standard procedure. Moreover, the patient did not follow the instructions for physiotherapy. He was in good condition when the stitches were removed, they submitted. They also said that the patient, over the phone, informed Opposite Party No. 2 that he fell down from his bed and suffering from pain in his left hand.
After considering the submissions of both the parties, the state commission ordered "The Complaint is allowed. The OPs are severally and jointly directed to pay Rs. 96,686.00 and further a sum of Rs. 1 lakh as compensation and Rs. 10,000/- as cost to the Complainant No. 1 within a month otherwise the OPs shall be liable to pay interest @ 10% p.a. on the entire awarded amount."
Finding the order unjust, the doctor turned to the National Consumer Dispute Redressal Commission. It was contended that the doctor experienced Orthopaedic Surgeon. He performed the operation under C-Arm vision screen and there was no chance of procedural mistake. The X-rays were examined before and after the operation. There was no gap after the operation. The Opposite Party No. 2 neither used oversized Titanium interlocking rod nor the oversized screws. The union of bone was not guaranteed and the gap seen may be due to various reasons such as pressure, fall, cohabitation, any hit / trauma to the fractured bone and due to non-formation of callous in normal manner.
The bench noted:
It is pertinent to note that the patient did not follow the medical advice for exercise and the physiotherapy. Moreover he fell down from the bed and sustained external trauma/ pressure on his left hand which caused increase in the gap between the fractured bones. However, it is evident from X-ray dated 11.11.2000 there was proper bone alignment and the rod in proper shape. We do not find any cogent evidence produced by the Complainant that the rod or screws used during surgery were oversized.
The doctor who is a qualified and experienced Orthopedician followed the accepted standard method to treat the fracture Humerus with use of C-Arm during the procedure. The new bone (callus) formation at fractured site takes long period and thus the patient was advised to wait and do regular exercise and physiotherapy.
The bench then observed:
What may appears as a heroic `early second intervention` which has palpably caused a positive impression on the patients mind cannot be used as a weapon to castigate the original surgeon or his methods who was following a well-accepted treatment plan including `watchful expectancy`. Such an assumption based on `what could have been…` is too presumptuous, simplistic and thus, untenable. It has become all too common for some medical personnel to present a `one up `view of their own practice to impress or convince a patient of additional treatments or alternative remedy, which may be in essence unrequired at that point of time. Such a patient intent on blaming someone for their misfortune and possibly arisen to a combination of his injury mechanism or complex pattern, his existing co-morbidities, in combination with slower biology by many other variables, is now all too ready to blame the original Surgeon and thereby cause injustice to the actually prudent practitioner of medicine.
Dismissing the plea of the patient, the bench then granted relief to the doctor and said:
"The doctor is not liable for negligence if he performs his duty with reasonableness and with due care. The mode of treatment and skill differ from doctor to doctor."
"the doctor treated the patient as per the standards. There was no negligence while performing the fracture operation and fixing the Titanium interlocking rod and screws to the Humerus. 18. On the basis of the examination made above, deficiency / medical negligence is not established. We set aside the Order passed by the State Commission and dismiss the Complaint. Parties to bear their own cost."
Attached is the detailed order below:
https://medicaldialogues.in/pdf_upload/pdf_upload-134116.pdf
