O.P.NO.46/2005
DATED THIS THE 17th DAY OF NOVEMBER 2009

Mrs.S.Sarala,

Assistant,

Office of the Director of Medical Services,

21, Srinivasa Avenue, Agasthiyar Nagar,

Villivakkam,

Chennai 600 049. …..Complainant

Vs.

1. Sundaram Medical Foundation,

Dr.Rangarajan Memorial Hospital,

Rep. by its Managing Director,

Shanthi Colony, IV Avenue,

Anna Nagar West,

Chennai 600 040.
2. Dr. V.B.N. Murthy,

Plastic Surgeon,

Shanthi Colony, IV Avenue,

Anna Nagar West,

Chennai 600 040. …. Opposite parties

This complaint dt.31.08.2005 filed against the opposite parties alleging medical negligence, claiming compensation of Rs.33,48,000 and for cost.



This petition coming on before us for hearing finally on 16.10.2009, upon perusing the material documents, and upon hearing the counsels for both the parties, and having stood over till this day for consideration, this commission made the following order.



Counsel for the Complainants : Mr.S.Soundararajan, Advocate.

Counsel for the Opposite parties: M/s.T.K.Bhaskar, Srinath Sridevan &

K.Harishankar, Advocates.



Hon’ble M. THANIKACHALAM J, PRESIDENT.



The brief facts pertaining to the case as under:-



1. The complainant while using Washing Machine in her house on 04.09.2004 at about 12.30 noon, met with an accident, in which, her right hand index finger, was caught in the Washing Machine and it was cut off. Immediately, she took the amputated finger in a plastic zipper bag and rushed to the first opposite party’s hospital along with her husband at about 1 p.m. where the duty doctor gave pain killer injection as well put a bandage. Though the complainant expected the specialist-qualified plastic surgeon to attend on her immediately, commence reconstructive surgery for re-implantation of the amputated finger, she was disappointed by the lack of immediate medical attention, indifference and delay in commencing the surgery, thereby, diminishing the possibility of recovery. After questioned/complaint by Muthukumar, brother of the complainant, there was some progress.



2. Only at 6 p.m., the second opposite party a specialist in Reconstructive Cosmetic Plastic Surgery arrived, examined the wound as well the amputated finger and was confident that plastic surgery would be successful. He further assured the patient of full recovery. At 6.45 p.m. the complainant was taken to the operation theatre, given anesthesia at 7.30 p.m., thereafter she did not know what happened till she regained consciousness around 10.30 p.m. She was taken to the room allotted to her at 11.30 p.m. The surgeon did not come to the room, who was bound to come to the post operative room and examine the patient after the surgery. Failure to do so, is a case of negligence on his part and complications arising thereon is attributable to the first opposite party vicariously and also on the second opposite party personally.



3. On 05.09.2004, the second opposite party visited the room and questioned about the allotment of air-conditioned room, instead of an ordinary room. On examination, the second opposite party said that there was good blood circulation and the operation was successful and before that till 9 a.m., he did not care to examine the wound, after surgery.



4. On 6.09.2004, the second opposite party examining the complainant, informed that the wound was healing well and the finger will reunite well. After surgery, antibiotics due to be given on 6.09.2004 at 6.00 a.m. was not administered and it was given only at 1 p.m., after reminder. For that report to the second opposite party, did not pay any attention, even.



5. The complainant when she was alone on 07.09.2004, the Surgeon came in the morning, examined the wound and said to the shock and surprise of the complainant, that there was no reunion of the finger, further informing his decision to amputate the part, so that gangrene would not set in, thereby, causing distress, shock, mental agony, thereby, complaining the complainant, finding no other way to leave the hospital in distress.



6. The complainant went to Government Stanley Medical Hospital, where she consulted the doctors, they informed that the finger had to be amputated since gangrene had set in, thereby, causing 13 per cent of permanent disability. The Discharge Summary dated 10.09.2004 was given on the insistence of the complainant and her relatives after manipulating the same to serve their purpose, where it is not even disclosed why the surgery was failure.



7. Only due to inordinate delay in commencing the operation, not arranging immediately the surgery due to sheer negligence, callousness and indifference on the part of the opposite parties, the complainant has been reduced to this situation, and she is unable to use her hand effectively because of the permanent disability caused by the deficiency in service on the part of the opposite parties, for which, they are liable to compensate, the complainant.



8. The complainant is a Government servant, has several years of service ahead. By the permanent disability caused, she is unable to use her righthand index finger not only in the office, but also in the house. Therefore, for the negligence act and inefficiency in service as well for defective surgery, the complainant is entitled to:

(1) a compensation of Rs.15 lakhs as damages for permanent

disability;



(2) Rs.15 lakhs for mental agony and pain and suffering;



(3) Rs.50,000/- towards refund of the charges paid to the hospital;



(4) Rs.50,000/- towards other expenses incurred;

In all a sum of Rs.31,00,000/- as well interest on the said amount of Rs.2,48,000/- upto date, totaling a sum of Rs.33,48,000/- with interest thereon at 18% per annum from the date of judgement till payment. Hence the complaint.



Defence as per the version in brief as follows:-



9. The complainant came to the first opposite party hospital on 04.09.2004 with amputation of the right index finger at the level of the PIP joint with disarticulation at PIP joint, as soon as, she was attended upon by a team of doctors, giving necessary treatment, till the surgery could be performed. There was absolutely no delay in commencing the surgery or failure of the post operative care treatment given to the complainant. The standard protocol in such cases which were severe but not endangering life was followed namely, (1) preservative of amputated part, (2) evaluation of patient clinically to rule out other injuries and necessary investigation. If the amputated part is well preserved, surgery can be performed between 6 and sometimes 24 hours and in this case, no delay was made and the surgery was performed within the prescribed time. At no point of time any assurance was given by anybody, for full recovery of the amputated finger. It was specifically informed to the complainant, that finger degloved amputated was final and that the complainant was given no assurance or guarantee about the surgical of amputated finger after re-plantation. The finger was prepared for re-implantation and re-vascularisation and restoration of blood supply was done between 7 and 8.30 p.m. which was well within the permissible time for re-implantation of the of the amputated finger. The complainant was specifically informed that an attempt at re-implantation would be made, but no assurance was given. After surgery, there was good flow of blood and finger was viable. The relatives were informed that the position needs to be reassessed at the end of 24 and 48 hours, even then the doctor told them, that there was no guarantee that the present condition would continue. The possibility of the failed re-implantation was explained to the complainant’s relatives at each of the visits. On 07.09.2004 it was informed, that the finger was not doing well and needs to be amputated. The second opposite party informed the patient, of the condition that the finger needed to be amputated as soon as it became clear that it was necessary. The complainant had left the hospital against the rules and medical advice and it is stated that the opposite parties cannot be held responsible, if the complainant leaves the hospital on her own and against the medical advice. As soon as it was found that the complainant was absconding from the hospital, a notification was immediately filed, as early as 12.30 p.m.



10. The opposite parties took all reasonable care necessary under the circumstances and tried their best to restore the amputated finger and the complainant lost the finger, because she had an accident on the washing machine and not because of any alleged negligence in the treatment as alleged by the complainant. They have not committed any negligence in any surgical procedure or in administering, during post operative care. There was no deficiency of service on the part of the opposite parties and the further fact being, there is no negligence also.



11. The claim made in the complaint regarding damages, compensation etc., are untenable without any basis. These parties are not liable to pay any amount, much less the amount claimed in the legal notice. The complainant was given all proper and necessary care which was consistent with acceptable medical practice and under no circumstances the complainant expect that the opposite parties to guarantee that the amputated finger could be replanted successfully. The other averments also denied specifically, praying for the dismissal of the complaint.



The points for determination are:-

1. Whether the opposite parties have caused any delay in

commencing the operation?



2. Whether the opposite parties have committed any negligence

or deficiency in service while doing surgery and in post operative

care?



3. Whether the complainant is entitled to compensation, if so,

what amount, against which party?





12. The parties have filed Proof Affidavit in support of their case as well produced documents, as well literature (Medical) to support there respective cases. On the side of the complainant, Ex.A1 to Ex.A27 were marked. Whereas, on the side of the opposite parties, Ex.B1 to Ex.B16 were marked. They have also filed Written Submissions, as contemplated under the provision of the Consumer Protection Act, 1986, hereafter called “Act”. Heard. Oral submissions also giving full opportunity for the parties.



POINT 1 & 2:

13. The complainant who is working as Assistant in the office of the Director of Medical Services at Teynampet, Chennai, met with an accident, in her house, while using the Washing Machine, accidentally or otherwise, her righthand index finger was got in the Washing machine and it was cut off on 4.09.2004, at about 12.30 p.m. Therefore, the permanent disability now complained, at 13% was not originally caused by the opposite parties, whereas it was invited by the complainant herself. In order to retrieve the disability, she rushed to the first opposite party’s hospital with the amputated finger at about 1 p.m. on 04.09.2004 where she was immediately given some first aid. But, according to the complainant, there was lack of immediate medical attention, indifference and delay in commencing the surgery as well there was failure to take post operative care, which resulted, the surgery-reimplantation of the finger, as failure. Thus, it is seen, the attempt made by the complainant, as well which was supported by the opposite parties for reimplantation or to rejoin the amputated finger ended in failure, thereby, leaving the complainant, as on date with permanent disability, in her righthand index finger. The loss of righthand index finger, to some extent, has not caused, or deprived the promotional opportunities of the complainant, as well it would not have greatly affected her day to day work also, either in the office or in the house. However, offended by the procedure adopted by the opposite parties in the surgery and accusing them, she has claimed a fabulous sum of Rs.33,48,000/- even calculating interest for compensation then including the same in the total amount, then further claiming interest thereon and for claiming such compensation, the grounds stated in the complaint are;

(1) there was inordinate delay in giving medical attention, leading to failure in surgery;

(2) there was defective surgery by the second opposite party; and

(3) that there was failure to take post operative care, leading to the situation of amputating the rejoined finger.



It is the further submission of the complainant that the “golden hour” was lost whereas if the surgery had been performed forthwith, the recovery would have been 100%. Thus alleging, fixing the responsibility upon the opposite parties, as said above, the claim is made.



14. The opposite parties would contend that immediately on the arrival of the complainant, all pre-operative care were taken, and the Surgeon consulted and discussed with the complainant at about 5 p.m., that immediately a best surgery was performed which proved to be successful as indicated in the case history and for the failure at the later point of time, they cannot be held responsible. Before going into the controversy, based upon literatures as well based upon the expert evidence, it is to be seen, what is the upper limit for successful surgery in this kind of operation, namely re-plantation. It is also to be seen, whether this kind injury is to be treated as urgent or emergency one, warranting immediate attention such as life threatening one.



15. The Text relating to “Initial Management of Injuries – An evidence based approach” edited by “Ronal F Sing” and others says that “As always, life-threatening injuries are given first priority as per the ATLS protocol”. Under the ‘Emergency Management’, it is observed “The emergency management of the amputated digit includes the following steps. A radiograph of both the injured limb and amputated part should be taken to assess bony anatomy. The wound is cleaned, irrigated with sterile normal saline, and dressed with a non-adherent gauze. An IV should be inserted for patient hydration and medications. Prophylactic antibiotics (usually a cephalosporin) and tetanus prophylaxis should be given. Clear instructions regarding NPO status for the operating room should given to the patient. The amputated part should be cleaned, irrigated with lactated Ringer’s, and then wrapped in saline-moistened gauze and placed in a sterile container. This sterile, water-tight container is placed in a large pan containing ice water. Ice should never contact the amputated part” . It is also said further “Major injuries include amputation of digits, a mangled hand, and compartment syndrome of the hand”. On the above line, if we analyze our case, it can be said it requires immediate treatment, but at the same time, it also cannot be said that it should be given top most priority since it is not life threatening injury, as spoken by the expert which we would discuss infra.



16. As pointed out in the Written Argument filed by the opposite parties, based upon the Text by “Campbell’s Textbook of Orthopedics”, “skeletal muscle undergoes irreversible necrotic changes after about 6 hours of total warm ischemia. The changes can be slowed or minimized if the part is cooled to near 4 degrees Celsius. (Though) larger parts such as the forearm and arm above the elbow should probably by replanted if they cannot be revascularized between 6 and 8 hours after amputation….because skeletal muscle in digits is not significant….cooled digits have been replanted successfully at 30 hours and more after amputation”. The Text under re-implantation by “James R.Urbaniak” says “If the patient has multiple injuries, the amputated part may be preserved at 4 degree C for at least 24 hours and delayed replantation peformed. Of course, this applies only to digital amputations where preservation of muscle tissue is not necessary”. It is further said that “For parts with no muscle (digits) the allowable warm ischemia time may be 8 hours or more. With cooling this has been extended to longer than 30 hours”. Under the Head, “SEVERITY OF INJURY”, “Despite dramatic results that have been achieved using long vein grafts to salvage limbs, extensive crushing, avulsing, and segmental injuries at multiple levels damage the distal vascular tree sufficiently to frequently defeat replantation attempts”. The complainant sustained not only cut injury in the Washing Machine, but also sustained crush injury which would certainly reduce the chances of full recovery, which is the opinion of the specialist also in this case.



17. Though it is bounden of the complainant to prove the medical negligence alleged, failure in the pre and post operative care, no expert has been examined, except the examination of the complainant as PW1. Admittedly, the brother of the complainant was also present in the hospital on the date of surgery and he certainly would have interacted with the second opposite party, who in turn, certainly would have conveyed the position, nature of surgery, the possible result and its certainty etc., Therefore, the best person who can speak about the alleged medical negligence or inefficiency or alleged defective surgery must be the brother of the complainant, and for the reasons best known to them, he has not been examined, for which, even an adverse inference also could be drawn, as if, had been examined, he would admit the truth, namely, that the second opposite party informed the complainant about the consequence of the surgery, and in this view an adverse inference is to be drawn, as there is suppression of true facts. Be it as it may. Now let us see, what is the expert opinion in this case.

18. It is not the case of the complainant, that the second opposite party by name Dr.V.B.N. Murthy, is not a qualified doctor or he is not a qualified Plastic Surgeon etc., though in Paragraph 14 of the complaint, it is said, “who is stated to be a specialist in Reconstructive Cosmetic Plastic Surgery arrived”, who has been examined as RW1. RW1 being the second opposite party, has filed Proof Affidavit and he was subjected to cross examination also. It is elicited from RW1, who has testified that “there is sufficient authority for my stand that an amputated part could be rejoined successfully upto 36 hours”, which is pointed out by us supra. RW1 has further admits that “major injuries requiring urgent treatment will also include amputation with respect to hand inquires. Reimplantation has also to be done as an emergency”. Based upon the above submission, the learned counsel appearing for the complainant would submit, that the doctor has not performed the surgery an emergency basis, and because of the delay he should be labeled as the person committed negligence or deficiency in service, which we will discuss at later point of time, when we analyze the documentary evidence.



19. It is also the case of RW1, that if he thought that this was a very emergent case, he would have attended to it immediately even at the cost of skipping his lunch. Thus, according to him, surgery required by the complainant was, not that of an emergent case, probably, leading threat to life and therefore the surgery performed by him at 6.30 p.m. or so, cannot be construed as delayed surgery, warranting to say a negligent. His evidence is supported by not only the medical literature relied on by the opposite parties, as culled out in the Written Argument, and same is also supported by the expert opinion of Dr.Antony, who is a qualified consultant Plastic, Reconstructive and Cosmetic Surgeon, serving at one of the leading hospital at Chennai, namely Apollo Speciality Hospital, Teynampet, Chennai. In his affidavit, RW2 has stated that the records verified by him, as listed in Paragraph 4 of the affidavit, failed to support a defective surgical technique, thereby, saying there is no defect also. It is the further submission of RW2, that this type injury even when the surgery has been successful, the functional result is poor, which is known to all Plastic Surgeons. It is the further case of RW2 in the affidavit, “the cause of the injury in Mrs.Sarala case (crush avulsion) itself had significantly reduced the chances of a successful surgery”. He was cross examined by the complainant. As submitted by the learned counsel for the complainant, he also admitted that the amputation is an emergency surgery and the surgery has to be done immediately. While reading entire cross examination of RW2, the above evidence given alone will not take us, to the conclusion that the delay in this case is the failure of the surgery. It is admitted by him, “it is correct to say that delay in starting the surgical procedure is likely to affect the outcome of the surgery”. In the case on hand, the surgical procedure started even at 2 p.m. onwards, though the actual surgery had taken place at about 7 p.m. as indicated in the documents, produced by either parties. It is also the evidence of the expert that “merely because the surgery was done 7 hours hence, the situation had not become worse”. If we read the entire evidence, as a whole including affidavit of RW2, the conclusion should be the delay in commencing the surgery, even assuming if any, that would not have affected the outcome of the surgery or that delay would not compulsory lead us to take an irresistible conclusion, that the failure in re-implantation had occurred only due to the delay. Thus, by going through the oral evidence of RW1 and RW2, who are all experts in this field, we are constrained to hold, that there was no defective surgery, as concluded by RW2, unless any better proof or unquestionable evidence are made available, on the side of the complainant. In this context, we have to see what is the settled position of law, in case of medical negligence.



20. In “Martin F. D’Souza vs. Mohd. Ishfaq”, reported in “AIR 2009 SUPREME COURT 2049”, a Division Bench of Apex Court, elaborately considered Consumer Protection Act, Medical Council Act, Indian Penal Code, including medical negligence, as well number of previous decisions of the Apex Court, then came to the conclusion that “A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct feel below that of the standards of a reasonably competent practitioner in his field.” It is further observed that “an error of judgement may or may not be negligent. It depends on the nature of the error” , further concluding “The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time”.



21. A Constitution Bench of the Apex Court in “Nizam Institute of Medical Sciences Vs. Prasanth S.Dhananka & Ors” reported in “2009-4-L.W. Part 1” once again reiterated the principles established by the Apex Court and while doing so at Para 20, it is said “The broad principles under which medical negligence as a tort have to be evaluated, have been laid down in the celebrated case of Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1. In this judgement, it has been observed that the complexity of the human body, and the uncertainty involved in medical procedures is of such great magnitude that it is impossible for a doctor to guarantee a successful result and the only assurance that he “can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence”.



22. The Bench finally concluded its opinion as follows:- “We sum up our conclusions as under:-

“(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty, “breach” and “resulting damage”.

(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam case”.



23. The Apex Court while dealing the burden of proof, in Para 32 said “We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence”.



24. In “Postgraduate Institute of Medical Educational and Research, Chandigarh Vs. Jaspal Singh and Others”, the Apex Court reiterated the settled position regarding, the professional negligence which reads “It is now well settled that a professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed or, he did not exercise, with reasonable competence in the given case the skill which he did possess. It is equally well settled that the standard to be applied for judging whether the person charged has been negligent or not; would be that of an ordinary person exercising skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices”. Then coming to the burden of proof, it is the dictum of the Apex Court that “In the medical negligence actions, the burden is on the claimant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioner’s breach of duty”. On the basis of the above settled proposition of law, the evidence in the present case has to be evaluated, when it is specifically alleged by the complainant, that the opposite parties have committed lack of care and cautions and the neglect, on the part of attending doctor namely the second opposite party in making necessary post-operative care.



25. Was there any delay on the part of the opposite parties;

As pleaded in the complaint, the complainant suffered the amputation of her righthand index finger while using the Washing Machine in her house at about 12.30 noon. In Para 7 of the complaint, it is said, she reached the hospital around 1 p.m. and the duty doctor gave pain killer injection, put a bandage on the wound part and requested them to wait. The above averments are, at present, sufficient to come to a conclusion, that immediate attention was given, when the complainant reported. It may be the anxiety of the complainant, that she should be attended forthwith, should have been taken to the operation theater immediately for re-implantation, but generally, it is not possible. In the hospital, there are certain procedures to be followed, and thereafter after admission etc., necessary arrangements have to be made, then the concerned doctor, who is to perform the surgery, has to consult with the patient or the relatives, then only, even in the emergent case, operation could be performed. As we have pointed out, placing reliance upon the expert evidence, injury sustained by the complainant was not that of life threatening injury, though it required immediate attention, as on urgent basis or on emergency basis also. For the above accusation of delay, the answer is available in Para 4 and 5 of the Written Version. It is specifically stated, supported by affidavit also, that as soon as the complainant came to the hospital, she was attended upon, by a team of doctors and all necessary treatment was given to her, till the surgery could be performed. It is further stated in Para 5, the standard protocol in such cases, which were severe, but not endangering life was followed, namely, preservative of amputed part, evaluation of patient clinically to rule out other injuries and necessary investigation. To follow the above protocol alone, it seems, the opposite parties have consumed the time upto 5 p.m. then the second opposite party had interaction with the complainant as well as her relatives. The Emergency Department Record (Ex.B2) would reveal that the complainant was attended at 2.05 p.m. and one Dr.J.Narmada had examined the patient at 2.10 p.m. The doctor also noticed about the nature of the injury, which reads “Crush injury / Disatriculation of the interphalangeal”. Further, what is the doctors orders also noted. The opposite party have also advised to take “X-ray Right Hand Ap/Obl; Hb/PCV/Bldg p./Typing/CBG” and accordingly X-ray was taken. Further, blood was taken, tested, and as per the advise of Dr.VBN (second opposite party) entry made to shift the patient to the operation theater. What are the medicines given at appropriate time, is also noted, under the caption “MEDICATION”. Therefore, the contention of the complainant, and the submission of her learned counsel, that the complainant was unattended, appears to be an invented theory, to affix a delay, thereby, if possible to make them liable for negligence or deficiency in service as if they have not attended, even a serious case, in time.



26. As admitted by the Doctor and as seen from the records also, in Ex.B4 i.e. “Consent to diagnostic, operative or treatment procedures”, the time is corrected as 3.45 p.m. though originally the time has been written as 2.45 p.m. Based upon this correction and some other corrections, available in the records, a forcible submission was made without force as if doctors have prepared or concocted the documents, in order to explain the delay, and in order to escape from the clutches of the deficiency in service. In support of the above submission, the later transaction or incident which had taken place between the hospital and the complainant also brought to our notice. Admittedly, the patient left the hospital, so to say abandoning the hospital on her own, and straightly went to Stanley Hospital, where the finger was amputated admittedly. Thereafter, some correspondences had taken place, such as giving complaint by the hospital and issuing letters by the complainant orl on her behalf, requesting the Discharge Summary and other related documents. Therefore, it is the submission of the learned counsel for the complainant, that to suit the situation or suit their defence, time was corrected and documents were prepared. By going through the Xerox copy of Ex.B1 to Ex.B13 as well as the acceptable, appreciatable oral evidence on the side of the opposite parties, we are unable to see any concoction in the documents submitted by the opposite parties, and in our view, the documents should have been prepared then and there,as required under medical code and in that process, there might have been some corrections due to human error, which is sought to be magnified by the complainant, for which, we are unable to lend any support. Therefore, we are inclined, to take the documents, as such, they were recorded while giving treatment to the complainant.



27. As seen from Ex.B5-“Progress Notes – S/B – Surgical Registrar”, as per advice given by the second opposite party, pre-operation orders were issued, admitting the patient also by 3 p.m. In this document, it is stated “Pre op orders”, (1). NOP from 3 p.m.; (2) Anaesthetists to see and to follow their orders; (3) Shift to OT & Call; and (4) Consent” and to complete, certainly some time should have been consumed. As spoken by the doctor and as pleaded in the affidavit, the amputated finger was well preserved and therefore time consumed from 2 p.m. to 5 p.m. is well explained and by this delay, it is not possible to affix any deficiency in service or negligence or carelessness on the part of the opposite parties.



28. The second opposite party, as RW1 has stated during the cross examination, that he saw the patient only at 5 p.m. and Ex.B5 – “Progress Notes” were written only on his instruction. In Ex.B5, the condition of the amputated finger is stated and it also discloses the discussion of second opposite party with the relatives of the complainant one Dr.Purushothaman also, which reads “Discussed with relatives (who is a ------Dr.Purushothaman). Single finger degloved amputation, difficult to reimplant & I have specifically told no guarantee of survival of the amputated part after reimplantation. He agreed and asked us to proceed fully aware that we will do our best to reimplant and no guarantees of successful out course”. When the doctor was cross examined, it is not even acceptably suggested to him, that what is written in Ex.B5 is incorrect or he has given assurance for the successful reimplantation of the amputated finger. He also further deposed, that he instructed the hospital to receive the part, which the patient had brought and preserve and therefore the so called delay has no significance in this case even assuming it is a delay. Before actually performing the surgery, for re-implantation, the second opposite party had explored the possibility of re-implantation of the amputated part. Therefore, according to him, he this work in the theater, advising the hospital staff to bring the patient later on. Even according to the complainant, she was taken to the operation theater at 6.45 p.m., where she was given anesthesia at 7.30 p.m. and she regained consciousness around 10.30 p.m. It is also the case of the complainant, as seen from Para 14 of the complaint, that at 6 p.m., the second opposite party examined the wound and the amputated finger. If we read the above averments available in the complaint, coupled with the documents, relied on, by the opposite parties, as discussed above, the reasonable conclusion that would be drawn by us, is that there was no extra ordinary delay of any kind and after the patient came to the hospital, she was under consent observation, subject to other connected proceedings, which are absolutely necessary to prepare the patient for operation.

29. Even assuming the time so taken is a delay, as per the expert opinion, that delay has not caused any dent in the successful operation and therefore on the basis of the alleged delay, we cannot find fault with the operation or the subsequent failure leading to amputation by operation. Therefore, we conclude, there is no delay and the consequential deficiency pleaded by the complainant is also unacceptable. As we have already discussed based upon the literature as well based upon RW1 & 2 evidence, the surgery was done within the permissible limit of time and the surgery done after few hours, which is explained, the situation had not become worse, that too, in view of the fact, in this case, the surgery was successful and though the re-implantation was not fruitful, because of the crush injury. Therefore, the contention of the complainant as if “golden hours” were lost and if surgery had been performed immediately, there should have been 100% recovery, is unacceptable.



30. Was there a defective surgery:

The second opposite party is a well qualified plastic surgeon, is not in dispute before us. When RW1 was subjected to cross examination, it is also not the case of the complainant that he is not a qualified Plastic Surgeon, being so, pretended to be a qualified surgeon. It is also not suggested with specific incident or with reference to any act or omission that he had performed defective surgery. Therefore, the case spoken by RW1 has to be accepted, as correct medically. In his affidavit, he has stated that he took reasonable care and necessary, precaution under the circumstances, tried his best to restore the amputated finger and at any point of time, there was no negligence in the treatment or in his surgical procedure or in administering during post operative care. Though the second opposite party was cross examined at length, much concentration has been paid in attributing the delay on him, in attending the patient and nothing is suggested even to infer, that he should have committed a defective surgery. The Operation/Procedure Report coupled that the subsequent recovery noted in the Nurse’s Progress Notes, only suggest that the operation was success, though at later point of time, it ended in failure, as available in this nature of cases which is spoken by an another specialist who has been examined as RW2.



31. Ex.B7 is the Operation Procedure Report in which the Doctor has noted about the procedure followed which reads “PROCEDURE DONE: Edges -- Thoroughly debrided / fingertip dissected / Nerelarge isolated & repaired / Bone shortened @ level of mid middle phalanx / proximal phx shortened @ neck / artery was Anastamosed @ and ulnar side end to end / good flow was maintained at end of procedure. One dorsal vein was completely avulsed and retracted down to the palm. Extensor tendons were approximated. 2 K-wire passed to stabilize the skeletion. Considerable amount of skin were given and the wound was dressed in POP cast”. In the above said procedure, it is not the case of the complainant that there are mistakes or negligent act which alone should have led her to the present position, namely loss of righthand index finger, causing 13% permanent disability. When the expert has given evidence, that upon going through documents, he cannot support a defective surgical technique in the surgery adopted by RW1, it is not even suggested to him, that the procedure adopted was defective or it fell below the standard, to be followed. He was ascertained during cross examination, that since the finger was viable for two days after the surgery, I would say that the surgery was not defective. No expert has been examined, on the side of the complainant and even the doctor brother of the complainant, who was presented at the hospital also has not been examined, as indicated by us earlier. We find no reason, to eschew the expert opinion given by RW1 and 2, preferring the non-expert evidence of PW1, which is admittedly interested one. Under the above facts and circumstances of the case, we conclude that there was no defective surgery, as alleged falsely by the complainant and the second opposite party being an expert in this field, performed his duty to his best, in which, we are unable to see either negligence or deficiency, warranting to accuse him as if he has committed so, resulting, permanent disability to the complainant.



32. Was there negligent and deficiency in service in the post operative care;

After surgery, on 4.9.2004, the complainant was moved to the room, where she was attended by nurses, who have prepared Nurse’s Progress Notes, which is exhibited as Ex.B12. Similarly, Progress Notes prepared by the Doctor (Ex.B11) also would go to show that there was proper care and attention. The doctor who operated and who attended, has noted in the Progress Notes on 5.9.2004 “Finger looks viable” - “Heparin drops on flow”. On 6.9.2004, when he examined the patient, he observed as “L/O-Severe back pain” – Finger – Looks viable” - Vitals – stable”. Upto this point of time, there is no dispute between the parties. Nurse’s Progress Notes also would indicate nothing had gone wrong till 6.9.2004. But unfortunately on 07.09.2004, RW1 informed that finger tip non-viable and there is need to amputate the finger and to that effect, an endorsement is also made on 7.9.2004 as seen from Progress Notes. As per the observation of the doctor on 6.9.2004 “Finger – Looks viable” – Vitals – stable”. But, it is not known how on 7.9.2004, the finger became non-viable, advising or stressing to amputate the finger.



33. It is the submission of the learned counsel for the complainant, that during the post operative period, medicines were not properly administered, which is also proved by Ex.B13. Doctors have advised to administer Augmentin injection as well as Heparin to prevent infection as well to prevent blood clotting. But unfortunately Augmentin injection was not given on 6.9.2004 at 12 noon and the subsequent entry also been corrected in Ex.B13. It is the further submission of the learned counsel for the complainant, as a result of non-administering the Augmentin injection, infection set in and gangrene formed in the wound which alone compelled the complainant to leave the hospital and go to Stanley Hospital. In Ex.B13, there is some correction, probably, even suggesting that one dose of Augmentin has not been given on 6.9.2004 at 12 noon. In this context, we have to see, whether the non giving of one dose of Augmentin injection, would be sufficient to draw a conclusion that there was carelessness and negligent on the part of the hospital, that led to the situation of infection leading to gangrene. It is also the case of the complainant that A/C room should not have been given to the complainant, after operation and giving A/C room was questioned even by RW1 himself and this also should be taken as negligent, in the post operative care. RW1 admits that he made a comment that the patient would have been put in a non-air-conditioned room, but at the same time, he would state that it would not make any difference. He also denied the suggestion that if the patient is kept in the A/C room, it would lead to numbness and that is why he has commented. It is admitted by RW1 that Augmentin has prescribed to prevent infection and the same should be given every 8 hours and it is admitted by RW1 that he has not gone through the Nurse’s Notes, but on enquiry, he satisfied that his instructions had been followed. Therefore, either providing A/C room or not giving one dose Augmentin, cannot be taken as gross negligent act while attending the patient after the surgery, which is well spoken by RW2. By pointing out some slackness and corrections, though an attempt has been made that there was deficiency in service, to prove that slackness or omission, was the cause for subsequent amputation, not at all made out. All the omissions and commissions of a doctor, cannot be taken as if he had committed deficiency in service or he has failed to follow the correct procedure, so as to say that he should be held guilty unless it is proved that omissions and commissions alone was the cause, for the sufferings of the patient, in this case, for the second amputation of the righthand index finger, in the Stanley Government Medical College Hospital. To prove this aspect, no expert has been examined and no literature also placed before us, whereas, the opposite parties have examined an expert, whose evidence nullifies the submission of the complainant.

34. An expert in the Plastic, Reconstructive and Cosmetic Surgery, who is working at Apollo Speciality Hospital, having qualification of foreign education and experience has stated that the out come of re-implantation would not have been affected, merely because a dose of antibiotic is missed and the mere use of an A/C room also does not affect the out come of reimplantation. He has further testified, that the cause of the injury in Mrs.Sarala’s case (Crush avulsion) itself had significantly reduced the chances of successful surgery, thereby, explaining the failure of re-implantation at later point of time, though the actual surgery was successful. Nothing is elicited from RW2, that he is favouring an unqualified doctor or supporting a doctor who committed negligence while doing surgery. Therefore, accepting the affidavit and oral evidence of RW2 without hesitation, we would say that in the surgery performed by RW1, there is nothing wrong or in other words, it is not defective, and in the post operative care also, there was no deficiency.



35. In the submission of the learned counsel for the complainant that surgeon has not attended immediately, after the operation and that also should be taken as negligent or deficiency in service. In the submission, after going through the medical records, we are unable to find any acceptable grain. The operation came to an end on 4.9.2004 at 9.45 p.m. and thereafter the patient should have been in the recovery room, then alone, she should have been shifted to normal room. By the surgery, the patient/complainant has not developed any unusual thing till 7.9.2004. The next day on 5.9.2004, at 9.00 a.m. or 9.30 a.m., the second opposite party examined the complainant and that is available not only in the Progress Notes (Ex.B11) but also in Nurse’s Progress Notes (Ex.B12). It is not necessary for the operating surgeon, when there is no complication of any kind, to be along with the patient, when the patient is attended otherwise by the competent person. In this view, the second opposite party has not seen or examined the complainant after she was brought to recovery room or regular room till the next day, may not be ground that he acted negligently.



36. Medical service, based upon medical science and knowledge and technique, generally, cannot be guaranteed and no one can predict, how the body would act and react in a given situation. Therefore, ordinarily, a doctor, especially a surgeon, cannot assure or give warranty or guarantee about the result, and if at all, he can say that he will do the best and positive result is possible. In our case, a defence is projected as if the second opposite party has assured the patient of full recovery and he was confident that plastic surgery would be successful. Being an expert, the second opposite party would have been confident, in his capacity to perform a successful surgery, but he cannot assure full recovery. In this way, he has also stated in Para 10 of his affidavit, that it is false to state that being a specialist in reconstructive cosmetic plastic surgery, he assured the complainant that the reunion will be perfect, further affirming that at no point of time, any assurance was given by anybody for full recovery of amputated finger. Therefore, on the basis of the assurance said to have been given or its failure, the opposite parties cannot be held responsible since such an assurance might not have been given by the second opposite party as stated by him, since such an assurance is also not possible, normally. As prudent doctor when he examined the complainant on 7.09.2004, when he noticed that the finger is non-viable, he stressed the need to amputate the finger probably by infection gangrene may set in. Whether this was informed directly to the complainant who is a bold lady, working in a Government Office or discussed with her husband, it is not going to make much difference and on ground as if the second opposite party informed the same to the complainant directly when she was alone, he cannot held with response for negligence or deficiency or otherwise. This is not the case, where by surgery alone, amputation had taken place, that too, due to negligence or carelessness etc., whereas, amputation had taken place in the Washing Machine, by the negligent act of the complainant and later on attempt was made to redo or reimplant the severed finger, which ended in failure, for which, the second opposite party cannot be held squarely responsible, as if he had caused permanent disability, for which, a compensation has been claimed at Rs.15 lakhs.



37. Analyzing the case, based upon the pleading, materials as well expert opinion, from all possible and probable angles, our considered opinion is that there was no delay, affecting the surgery, there was no defective surgery of any kind, that there was no carelessness or negligence in the post operative care also and for the failure of re-union of amputated finger, in this case, the opposite parties cannot be held responsible, which follows, they are not answerable for the tall claim made by the complainant under various heads. For these reasons, the points are answered, against the complaint.



38. In the result, the complaint is dismissed, directing the parties to bear their respective costs.





PON GUNASEKARAN M. THANIKACHALAM

MEMBER-I PRESIDENT









EXHIBITS DATE DESCRIPTION



A1 04.09.2004 Receipt for Rs.50/- for registration.

A2 04.09.2004 Receipt No.66015 for Rs.5,000/-.

A3 04.09.2004 Inpatient admission slip.

A4 04.09.2004 Interim Bill for Rs.9283.27.

A5 07.09.2004 OP Chit of Stanley Medical College Hospital.

A6 11.09.2004 Telegram from complainant to first OP.

A7 14.09.2004 Bill summary for Rs.30,438.27

A8 27.09.2004 Letter from complainant to first OP for issue of

medical records.



A9 30.09.2004 letter from complainant’s brother to first OP.

A10 27.09.2004 letter for handing over copies of medical

records of first op hospital.



A11 4.09.2004 to Temperature/BP/Intake/Output, imaging

7.9.2004 requisition form, clinical pathology report.



A12 08.09.2004 Discharge summary.

A13 05.09.2004 Inpatient Test entry.

A14 -- Copy of medical records.

A15 29.09.2004 Disability certificate from Stanley Medical

College Hospital.



A16 -- Prescription Slips.



A17 4.09.2004 to Cash bills for medicines and other charges.

6.09.2004.

A18 20.11.2004 Complaint to the Inspector of Police.

A19 06.12.2004 Acknowledgement from the inspector of police,

Anna Nagar.



A20 20.11.2004 Appeal by the complainant to the President of

India and others.



A21 15.12.2004 Letter from President’s Secretariat.

A22 12.08.2005 Copy of notice from counsel for complainant to

first op hospital.



A23 16.08.2005 Reply from Counsel for first OP hospital.

A24 -- Acknowledgement Card.

A25 17.01.2005 Letter from Director of Medical and Rural

Health Services, Chennai to complainant.



A26 -- Employee ID of complainant.

A27 -- Last Pay Certificate of complainant.

Documents of Opposite Parties:



B1 04.09.2004 Patient Identification Data Collection Form.

B2 04.09.2004 Emergency Department Record.

B3 -- History and Physical Examination Report.

B4 -- Consent to diagnostic, Operative or treatment

Procedures.

B5 -- The Surgeon’s observation prior to the

operation.

B6 -- Pre-operative Procedure Check List.

B7 -- The Operation Procedure Report.

B8 -- The Anesthesia Record Sheet.

B9 -- Physician’s Order Sheet.

B10 -- The Post-operation Anesthetic Record.

B11 -- The Progress Notes.

B12 -- The Nurse Progress Report.

B13 -- The Drugs and Medication Report.

B14 -- Notification of Absconding Patient.

B15 -- Discharge Summary.

B16 -- Reply Notice.