1. IN the several judgments on Medical Negligence, the Hon''ble Supreme Court observed that:
"Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient, since the professional repudiation of the professional would be at stake. A single failure may cost him dear in his lapse. The law is a watch -dog, and as long as doctors do their duty with reasonable care, they will not be held liable even if their treatment was unsuccessful."
The Complainant, Mehtab Alam Khan sustained knee injury by motorcycle accident, on 13.6.2000. After first -aid, he was taken to Bhattacharyya Orthopaedics and Related Research Centre (P) Ltd. (BORRC), where, a surgery took place, on 17.6.2000, and was discharged, on 19.6.2000. At the time of discharge, his right knee was paining. On the next day, the plaster on the right knee was replaced by one of the doctors, and charged extra amount. The Complainant followed the advice of the doctor strictly and did regular exercises. The Complainant informed the OP doctor of pain and problem in his right knee. But the OP turned a deaf ear to it. Thereafter, for second time, the OP -2 operated the Complainant on 16.2.2001 at BORCC and discharged him on 19.2.2001, but there was no cure. Thereafter, the Complainant, consulted a few renowned doctors, who informed him of the need of an immediate surgery, to correct his Varus deformity and the shortening of right leg. The Complainant alleged that due to negligence and deficiency on the part of OPs, he suffered deformity, with mental and physical loss. Hence, filed the Complaint before the District Forum for proper compensation.
The District Forum dismissed the complaint. Subsequently, the appeal filed by the Complainant was also dismissed. Hence, the Complainant/Petitioner filed the present Revision Petition.
2. WE have perused records and heard the Counsel for both the parties. This Commission has appointed Mr. Vikas Nautiyal as Amicus Curiae, on behalf of the complainant. He vehemently argued that the OPs were negligent in the treatment who administered about 20 doses of injection ''KANCORT'', unnecessarily. Also, it is contended that the OP -2 followed ''ILIZAROV method for the treatment and the second operation was performed for removal of splint only and it was not a corrective treatment. The patient developed varus deformity; also it was not proper that, OP prescribed 14 hours of exercise daily. Counsel also submitted that, the cross -examination of OP -2 can be treated as expert evidence as OP -2 was a qualified Orthopaedician. Thus, principle of res ipsa loquitur is to be applied in this case of medical negligence.
The learned Counsel for the OP/Respondent submits that, there is no specific averment to the point of negligence by OP and also, there is no expert evidence. It is contended that the OPs are highly qualified doctors having skill and knowledge in the field, also submitted that there is no averment that the first operation was wrongly done, shortening of the leg may also occur in such a case. It is submitted that, OP administered KANCORT injections, properly, depending upon the period of treatment, conditions of the patient, nature and gravity of the injury.
3. THE learned Counsel for the complainant, put reliance on the decisions of Hon''ble Supreme Court in Kusum Sharma and Others v. Batra Hospital & Medical Research Centre & Ors., : II (2010) SLT 73 : I (2010) CPJ 29 (SC) : 2010 CTJ 241 SC; Martin F. D''Souza v. Mohd. Ishfaq, : I (2009) CPJ 32 (SC) : 157 (2009) DLT 391 (SC) : II (2009) SLT 20 and V. Kishan Rao v. Nikhil Super Speciality Hospital and Anr., : V (2010) SLT 349 : III (2010) CPJ 1 (SC) : 2010 CTJ 868 (SC). The Counsel also referred to the Journal "Rockwood and Green''s Fractures in Adults" Volume -2, pages 1813 to 1838 and "Campbell''s Operative Orthopaedics" 10th Edition, (pages 2782 to 2792).
4. WE have perused the medical records, case papers and continuation sheets, maintained by BORRC, during the period from 17.6.2000 to 1.5.2001. It is clear that, on 17.6.2000, the OP -2 performed the operation of Open Reduction with Internal Fixation (ORIF) of depressed fracture (#) of Right Medial Tibia/Condyle and after discharge, advised the patient for regular follow up, quadriceps, knee and hamstring exercises and walk. Hence, we do not think that, OP advised excessive exercise. OP has given injections ''Kanacort'', in intervals, for the contractures. Thereafter, on 16.2.2001, OP -2, performed the operation for Removal of Implants from Right Knee and Myoarthrolysis and 4 tube drains were given. At that stage, OP -2 made a final diagnosis, as Right Knee Fixed Flexion Deformity 10ø. We have perused the Treatment Sheet dated 10.10.2000, in which it clearly mentions that "quadricepses were markedly wasted due to lack of exercise". There was no pain, no tenderness, and no fluid.
We have perused the written statement filed by the OP -2, in which he explained that he is a qualified orthopaedic surgeon (M. S. Ortho) and is having experience of about 15 years. The OP -2 performed the surgery properly, the postoperative advice was correct. The injections ''Kanacort'', administered, were not in excess, and also no side effects were seen in this case. We have perused various prescriptions, slips, on the file, and noted that, after discharge from OP, the complainant/patient visited several orthopaedic surgeons during one year, namely Dr. Rajesh Agarwala, and Dr. R. Gopal Krishnan at Apollo Hospital, Chennai; Dr. M.S. Ghosh, Dr. Sachinandan Basu and Dr. G. Banerjee, at Kolkata, Dr. Sanjay Keshkar, Dr. K.L. Sarkar at the National Institute for the Orthopaedically Handicapped, Kolkata. It is pertinent to note that, none of them have opined or commented about the negligence in the operation performed by the OP -2.
5. IN addition, we have referred the standard books on Orthopaedics like Standard Orthopaedic Operations, by J. Crawford Adams, Watson -Jones Fractures and Joint Injuries, by J. N. Wilson, and Campbell''s Operative Orthopaedics. It is clear that the varus deformity is a known complication of such operation. There was wasting of quadriceps muscles due to lack of exercise and also due to unpreventable contractures which causes shortening of leg. There is no expert evidence to prove that the Operation was wrong or the injection ''Kanacort'' was given in excessive dose.
The basic principle relating to medical negligence is known as the BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam v. Friern Hospital Management Committee,, (1957) 1 WLR 582, as follows:
"Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill.... It is well -established law that it is sufficient if he exercised the ordinary skill of an ordinary competent man exercising that particular art."
Therefore, we do not find any element of negligence committed by OP -2, during the treatment of the said fracture of the complainant. It was a reasonable and accepted Standard of Orthopaedic Practice. The OP -2 adopted the course of treatment which is more appropriate to follow, depending on the facts and circumstances of a given case. Hence, the OP -2, doctor, cannot be penalized, even if it results in a failure. Hence, we are of opinion that, there is no reason to interfere with the well -reasoned order of State Commission. Accordingly, the revision petition is dismissed. There is no order as to costs.
