Syed Osman v. Dr.W.R.Shashidharan Rao M.S. Ortho

2. The complainant submitted that since the discharge the complainant continuously been suffering with pain and when consulted the Opposite Party No.1,the doctor informed the complainant that there is a need of another minor surgery as he had infection on the surgery part. On 04.09.2020 the complainant admitted in the opposite party no.2 hospital and the Opposite Party no.1 conducted second surgery on 09.09.2020 and removed a screw from the left knee of the complainant where during the first surgery placed and discharged.

3. The complainant further submitted that in spite of two surgeries as there has been no relief from pain on the advice of the opposite party no.1 third and fourth surgeries were performed on 21.09.2020 and 10.10.2020 respectively. Despite multiple surgeries the complainant still experiencing great pain and discomfort but his concerns were brushed aside by the opposite party no.1. The condition of the complainant worsened as days elapsed even though he was subjected to physiotherapy. Actions of the opposite parties in misleading the complainant when he confronted them with the diagnosis from that he would be cured with physiotherapy are unfair trade practice. As a result of the misleading advice the complainant was put to further physical and mental pain and agony. The complainant in the month of October/November 2022 visited the Osmania Hospital for the second opinion where the doctors opined that due to multiple surgeries the left knee of the complainant was damaged and refused to operate due to infection and if they do so there is a risk. The complainant became permanent disabled person with 49% to that effect the doctors at Osmania Hospital issued the disability certificate.

4. The Complainant was taken medical opinion dated 22.01.2023 prior to approaching the District Commission. The complainant got issued a legal notice on 12.10.2023 to the opposite parties and the opposite party no.1 gave reply notice on 03.11.2023. The

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complainant submitted that the opposite parties have been negligent in discharging their medical duties towards their patient who had reposed complete faith on them. The hospital is also vicariously responsible for the negligent acts of the doctor. Hence, the present complaint.

5. The Opposite Parties have filed their common written version and stated that the complainant has not abided by the precautionary measures as directed by the opposite parties and contrary to that has gone against the advice of the opposite parties. That the complaint is barred for non-joinder and misjoinder of parties and has been filed without there being any cause of action apart from being barred by limitation and the prayer of the complaint is misconceived.

6. The Opposite Parties further submitted that the Opposite Party No.2 hospital is known in the Hyderabad city as well as in the neighboring districts and states for being a charitable hospital with accommodative charges and as such the Opposite Party No.1 advised the complainant to get his surgery performed there in view of the financial difficulties expressed by the complainant. It is pertinent to mention that the same surgery in any other regular hospital would cost a patient not less than Rs.1,50,000/-. The complainant has undergone surgeries on 4.9.2020 and second surgery on 09.09.2020 at opposite partyno.2 hospital where they have removed the screw from complainant's left knee which was placed during the first surgery and was discharged after second surgery. The Complainant had come down with complaint of pain and on diagnosis it was found due to not following the precautions the wound got infected and to prevent further increase in infection the screw was removed. As far as development of infection in operated area is concerned that was treated and cannot be a reason for disability of a person. Moreover, the infection was not an immediate effect but was certainly developed because of negligence on the part of the complainant and not following the restriction and advice of the treating doctor. Also, for not maintaining hygienic conditions in the Place of rest away from the hospital. This could also occur for not

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taking the medications properly. The pain was normal and customary in view of the surgery performed and the same was informed to the complainant that would eventually reduce. On 21.09.2020 the second screw was removed and he was treated with IV antibiotics and was discharged on 6.10.2020 in good clinical condition. The treatment was not charged and the medicines were supplied free of cost in view of the fact that the said hospital is a charitable hospital. The complainant was treated on 10.10.2020 but not by performing surgery but was performed debridement and suturing the wound and discharged on 13.10.2020 in a good clinical condition by advising the complainant complete bed rest, knee brace and antibiotics.

7. The Opposite Parties further submitted that the Complainant improved clinically and he was advised for physiotherapy again without charging anything apart from supplying medicines free of cost. On enquiries it was revealed that he did not properly attend the same and was irregular. Further the doctor performing physiotherapy treatment would not proceed with the same in case he found any kind of infection in the joint. The physiotherapy exercises in such a case include bending of knees, walking and knee strengthening exercises which will not be performed in case any infection is there in the operated part.

8. The complainant was specifically advised not to undertake driving of heavy vehicles as the same would adversely affect the perfect surgery done by the opposite party no.1. The said advice of prohibition was ignored and overlooked by the complainant and he started driving lorry and got injury to his left knee in Kolkata. The said injury was totally different and independent injury and has got nothing to do with the treatment done by the opposite parties earlier. A careful perusal of the Disability Certificate dated 21.01.2023 shows that the said document cannot be used for any medico legal case. Further the cause of disability is shown as

"Accident" (post Traumatize loss of movement left knee joint) and not because of any failure in surgery. Further the said disability

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certificate does not show that the complainant is prevented form doing any work or earning for himself. By the time the opposite parties completed the treatment of the complainant he was perfectly all right and had to abide by the restrictions imposed which he has not done and unfortunately called for troubles for himself. The fact that the complaint has been filed after 3 years and 3 months from the last discharge on 13.10.2020 and complaint filed on 03.01.2024 itself shows that the same is time barred and an afterthought.

9. The Opposite Party doctor as well as the hospital has gained unrivalled reputation in the Society for their treatments and in the present case also, they have done the same with the best possible manner. The Complainant cannot attribute any kind of negligence on the opposite parties as the treatment was done as per the protocol and the procedure prescribed by medical text. The opposite party has done his MS (Orthopedics) in the year 1997 and has been continuously performing surgeries and treatments from then till date without any complaint from any patient. The Opposite Party hospital is a charitable institution running for more than 50 years now given service to poor and needy patients. To the legal notice issued by the Complainant a suitable reply was given. The Opposite Parties crave leave of this Hon'ble commission to file appropriate medical text to show that the protocol followed by the opposite patties was in consonance with the basic line of treatment to be given to such patients. The documents obtained by the complainant on two occasions under the Nomenclature "Declaration to be signed by the government Servant" was obtained in spite of he being a private Driver, shows that the complainant had wrong intentions from the beginning. The said certificate has to be obtained from the hospital by a person who is entitled for reimbursement of medical expenses or is a family member as defined under the Andhra Pradesh Government Servant Medical Attendance Rules 1972.

10. The opposite parties submitted that the complainant miserably failed to prove any kind of deficiency and negligence on

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the part of opposite parties jointly or severally and as such the complaint deserves to be dismissed by imposing exemplary costs.

11. Evidence affidavit of the complainant filed and examined himself as PW1. Ex.A1 to Ex.A20 are marked for the complainant. Evidence Affidavit of Opposite Parties No.1 to 3 were filed through Dr.R.Shashidharan as DW-1 and no documents have been filed on their behalf. Evidence Affidavit of Third Opposite Party filed through Dr.M.S.Praveen Kumar as DW2 and Ex.B1 and Ex.B2 marked on their behalf.

12. Written arguments of the Complainant and Opposite Parties 1 to 3 are filed along with citations. Heard both parties.

13. On perusal of material available on record the points to be answered for determination are:-

1. Whether the complaint is barred by limitation?

2. Whether any deficiency of service is there on the part of the opposite parties as claimed under the complaint?

3.Whether the complainant is entitled for the relief sought?

4. To what extent?

POINT NO.1:

1. The Opposite Parties had taken the preliminary objection that the present Complaint is barred by limitation because as per the Version of the Complainant himself that on 13.07.2020 approached the Opposite Party no.1 who after conducting tests, performed ligament surgery on 19.0.8.2020. Thereafter when the pain and infection was not subsided, the Opposite Party No.1 conducted surgeries on 09.09.2020, 21.09.2020 and on 10.10.2020 respectively in Opposite Party No.2 hospital. Later after 3 years 3 months obtained disability certificate from the Osmania Hospital in the month of January, 2023 and got issued a legal notice to Opposite Parties through his Advocate on

12.10.2023 and the present Complaint had been filed by the

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Complainant on 03.01.2024. It is an admitted fact that, the Complainant was taking treatment since 2020 onwards and finally he had approached Osmania General Hospital from their he had obtained disabled certificate Dt:21.01.2023, then only he came to know about the negligent treatment given by the Opposite Parties and in the disabled certificate the percentage was shown as 49%.

2. Later, in the month of October/November 2022 the complainant visited the Osmania Hospital where upon examination of the surgery site refused to operate stating that the knee was damaged due to multiple surgeries undergone by the complainant it leads to risk if they performed surgery and they issued a disability certificate in the month of January 2023. Hence, the Opposite Parties cannot take the plea with regard to limitation for filing the present Complaint. Therefore, the Complaint is filed within the limitation period. Moreover, during the course of oral arguments the counsel for the Complainant had submitted that much time had been lost in the course of his prolonged treatment. At that point of time, it was a major priority for the family to get the Complainant treated rather than going through the process of litigation. So, the present Complaint is being decided on merits.

POINTS NO.2 AND 3:

1. Now the issue before us is whether there was any 'act of medical negligence' on the part of the opposite parties as per the contents of the Complaint and whether there was any 'Deficiency of Service' on their part or they indulged in 'Unfair Trade Practice'.

2. To decide the same issue involved in the Complaint, it is important to go through the sequence of events, which lead to filing of the present Complaint.

3. The complainant met with an accident on 13.07.2020 resulting injury to his left knee. The complainant has stated he consulted the opposite party no.1 who after conducting medical tests advised him to undergo ligament reconstruction surgery. The opposite party no.1 performed the surgery in opposite party no.2 hospital on 19.08.2020 as the opposite party no.3 has no facilities for conducting the said surgery. After the surgery the complainant was

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discharged by assuring that he will lead a normal life. But after the discharge when the pain in the operating site persisting, he again approached the opposite party no.1 who after examination of the wound found that it was infected and need another surgery and was performed on 09.09.2020 by removing a screw from the left knee and he was discharged. Again, when the pain continues the complainant approached the opposite party no.1 who performed third surgery on 21.09.2020 and on 10.10.2020 and discharged advising to undergo physiotherapy. The complainant stated that even after undergoing physiotherapy there is no relief from pain.

4. The learned counsel for the complainant has contended that because of not adopting proper procedure in treatment, the opposite party no.1 forced to perform multiple surgeries resulted in damage to the complainant's knee. The learned counsel for the opposite parties has contended that there was no negligence on the part of the opposite parties in rendering the treatment to the complainant.

5. The Complainant filed Ex.A1 copy of prescription issued by the opposite party no.1 on the letter head of opposite party no.3 dated 13.07.2020 wherein it was mentioned that the complainant had pain in left knee since four days advised ACL tear, MCL tear surgery and it was also mentioned as medial collateral ligament and prescribed MRI of left knee and some medicines. Ex.A2 is the copy of receipt dated 13.07.2020 showing payment of Rs.80,000/- towards surgery charges. Ex.A3 is the copy of MRI Report of Left Knee which is as follows:

TECHNIQUE:

T1, T2,PD fat sat sagittals, T2 fat sat, STIR coronals, T2 and PD fat

sat axials.

FINDINGS:

o Alignment of left knee joint normal o Articular margins and joint spaces appear normal o Subchondral marrow edema involving the lateral tibiofemoral condyles

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o Anterior cruciate ligament is bulky and shows intrasubstance altered signal intensity at the site of femoral attachment.

o Posterior cruciate ligament show normal signal intensity, shape and position.

o Both menisci show normal signal intensity, shape and position.

o Medial collateral ligament show intrasubstance altered signal intensity at the stie of tibial attachment o Lateral collateral ligament show normal signal intensity shape and position.

o Moderate joint effusion.

o Patella appears normal in shape and signal morphology

o Quadriceps and patella-femoral tendons are normal o Visualized major vascular structures are normal o Subcutaneous edema noted.

IMPRESSION: MR IMAGE MORPHOLOGY IS IN FAVOUR OF

Bony contusions involving the lateral tibiofemoral condyles Medial collateral ligament tear.

High grade anterior cruciate ligament tear with moderate joint effusion

For clinical correlation and follow up. From the above MRI report it was clear the Complainant had bone contusions to the lateral tibiofemoral condyle and MCL tear is damage to the medial collateral ligament, which is a major ligament that's located on the inner side of knee. It is also mentioned therein that the complainant had High grade anterior cruciate ligament rear with moderate joint effusion. The anterior cruciate ligament is one of the two cruciate ligaments that aids in stabilizing the knee joint. It is the most commonly injured ligament in the knee.

6. Ex.A4 is the copy of bill/receipt dated 13.07.2020 for Rs. 6200/- Ex.A5 are the copies of blood tests report along with emergency certificate and Discharge summary.

7. In emergency certificate the Complainant profession written as lorry driver who was admitted in emergency in the hospital of the opposite party no.3 on 30.07.2020 with the complaint of pain in the left knee while walking and while bending the leg. H/o injury to the left knee on 9.7.2020.

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8. In Discharge summary it was mentioned ACL and MCL Tear and admitted with the complaints of pain in left knee, pain while walking and while bending the leg and the history of injury to his left knee was on 09.07.2020. It is also written that during hospital stay necessary investigations were done posted for surgery orthoscopy but postponed then patient discharged as advice by primary physician. It is pertinent to note that when it was decided to perform surgery orthoscopy then why the surgery was posted and discharged the complainant is not known.

9. Ex.A6 is the copy of patient final bill for Rs.2594/-. Ex.A7 is the copy of Discharge summary dated 23.08.2020 wherein it was mentioned IDK (Lt) KNEE ACL TEAR, MCL TEAR (Lt) KNEE. The patient was admitted with complaints of pain in left knee with history of injury 2 months back. The vitals at the time of admission are mentioned as normal. It was also mentioned that after admission the complainant had undergone required investigations and treated with IV antibiotics NSAID'S PPI's IV fluids and other supportive care and management.

10. Ex.A8 and A9 are the copies of Inpatient Bills. Ex.A10 is the copy of Discharge Summary wherein it was mentioned as operated ACL Reconstruction done on 09.09.2020 under SA. Patient admitted with history of pus draining from the operated site on and off.

11. Ex.A11 is the copy of inpatient bill dated 12.9.2020. Ex. A12 is the copy of Discharge summary dated 09.10.2020 wherein it was mentioned that POST ANTERIOR CRUCIATE LIGAMENT

RECONSTRUCTION LEFT KNEE. Patient admitted with complaints of fever spikes on and off since one month. Watery type discharge and bleeding on and off from operated site left knee stiffness of lower limb left. Past history of anterior cruciate ligament tear left knee on 16.08.2020. Left knee anterior cruciate ligament reconstruction done on 09.09.2020 and removal of screw from left knee done on 21.09.2020. Left knee suturing done on 10.10.2020 for post anterior cruciate ligament reconstruction and treated with IV fluids, IV antibiotics, PPI's and other supportive care was given.

12. Ex.A13 is the copy of inpatient bill. Ex.A14 is the Certificate for Person with Disability dated 21.01.2023 wherein it was mentioned as

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Post Traumatic Loss of Movement Left Knee Joint and the percentage of disability mentioned as 49%. Ex.A15 is the copy of Identity Card for Persons with Disability. Ex. A16 is the copy of Aadhar card.

13. Ex.A18 is the copy of legal notice got issued to the opposite parties no.1 and 2 dated nil. Ex.A19 is the copy of reply legal notice dated 03.11.2023 given by opposite party no.1. Ex. A20 are the copies of photographs to show his left knee injury site.

14. The learned counsel for the complainant has contended that the complainant met with a minor accident on 13.07.2020 where a minor cut on the knee of the left knee and as such approached the opposite party no.1 who advised and performed the surgery upon the complainant. To know the veracity of the injury and the submissions of both parties the point that arises is as to whether the surgery involves repairing or reconstruction of the anterior cruciate ligament. As per the literature found in the internet reads as under:

When is surgery required. Surgery is performed more often than not following Anterior Cruciate ligament tears. With a repair, the existing damaged ligament is sutured (stitched) if the tear is in them idle. If the ligament has detached from the bone (avulsed) then the bony fragment is reattached. Surgical reconstruction of the ACL, is performed using either an extraarticular technique (taking a structure that lies outside the joint capsule such as a portion of the hamstring tendon) or an intra-articular technique (using a structure from within the knee such as part of the patellar tendon) which will replace the anterior cruciate ligament. What does surgery involve. Surgery involves either repairing or reconstructing the anterior cruciate ligament With a repair, the existing damaged ligament is sutured (stitched) if the tear is in the middle If the ligament has detached from the bone (avulsed) then the bony fragment is reattached Surgical reconstruction of the ACL is performed using either an extra-articular technique (taking a structure that lies outside the joint capsule, most commonly a portion of the hamstring tendon) or an intra-articular technique (using a structure from within the knee such as part of the patellar tendon) which will replace the anterior cruciate ligament. In C.P.Sreekumar M.S (Ortho) vs S.Ramanujam in CIVIL APPEAL No.6168 OF 2008 decided on 1 May, 2009, the Honble

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Supreme Court held that the decision of the doctor in choosing a particular line of treatment cannot be termed as erroneous or unacceptable. It was held that:

It is also relevant that though the respondent had sought the opinion of Dr. Ajit Yadav of the Tamil Nadu Hospitals on 30th May 1992, he produced no evidence to off. Set the appellant's evidence as to why he had chosen

hemiarthroplasty over internal fixation. It is equally significant that the respondent had taken the advice of several renowned doctors including Dr. Mohan Das and Dr. Nand Kumar, but none of them in their treatment notes observed adversely about the choice of treatment nor any negligence in the actual operation. In the light of the fact that there is some divergence of opinion as to the proper procedure to be adopted, it cannot be said with certainty that the appellant, Dr. Sreekumar was grossly remiss in going in for hemiarthroplasty. In Jacob Mathew case (supra) it has observed as under:

(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 judgment 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;

21. It would, thus, be seen that the appellant's decision in choosing hemiarthroplasty with respect to a patient of 42 years of age was not so palpably erroneous or unacceptable as to duty as a case of professional negligence.

15. Having held that it is in the domain of the treating doctor to opt for or not performing the surgery upon the complainant, we will consider whether the opposite parties have taken reasonable care during pre-operative stage, during the period of surgery and during post-operative stage.

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16. In the present case as per the MRI report dated 13.07.2020 the complainant had medial collateral ligament tear with high grade anterior cruciate ligament tear with moderate joint effusion. In this case the surgical treatment for reconstruction of ACL is recommended as it is high grade anterior cruciate ligament tear.

17. Dr.W.R.Shashidharan Rao M.S.(Ortho) who is the opposite party no.1 has stated that:

"I most humbly submit the true facts which are that the complainant approached the opposite party for an injury which was treated by the opposite party by following the protocol and highest standards laid down by the medical texts. The complainant was advised rest and physiotherapy thereafter for the total healing of the said wounds but in spite of restraining himself and taking rest, the complainant opted to drive heavy duty Truck which has adversely affected complainant's leg/knee. Thereafter the complainant met with another accident in Kolkata and suffered damage to the same leg/knee which was treated in a hospital in Kolkata. As such the complainant is responsible for the damage of his own leg and under no terminology can the opposite parties be held liable for the same. …….I submit that as far as development of infection in operated area is concerned that was treated and cannot be a reason for disability of a person. Moreover, the infection as not an immediate effect but was certainly developed because of negligence on the part of the complainant and not following the restriction and advise of the treating doctor. Also, for not maintaining hygienic conditions in the place of rest away from the hospital. This could also occur for not taking the medications properly and on time as advised by the treating doctor. It is further humbly submitted that the complainant underwent physiotherapy treatment for 6 months as claimed by him. On enquiries it was revealed that he did not properly attend the same and was irregular. Further the doctor performing physiotherapy treatment would not proceed with the same in case he found any kind of infection in the joint. The physiotherapy exercises in such a case include bending of knees, walking and knee strengthening

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exercises which will not be performed n case any infection is there in the operated part".

18. As seen from the written version of the Opposite Parties and also the affidavit evidence of the opposite party no.1 it is found that nowhere it was mentioned about the complete procedure of the surgery that was performed in the initial stage and it is also to be noted that a screw was fitted in the first surgery but it is not elaborated why the screw was fitted in the first surgery. It is also come to suspicion that whether the screw fitted is the root cause of infection that leads to infection and warranted multiple surgeries that was not clearly explained in anywhere in the written version and also in the medical record of the Opposite Parties. The opposite party no.1 simply in his affidavit stated that the complainant had not followed the instructions given by the opposite parties and not completed his physiotherapy sessions for six months, not maintained hygienic conditions, met with another accident at Kolkata and being a lorry driver, the complainant had drove the lorry etc., which are all hearsay and there is no proof to the allegations of the Opposite Parties and Opposite Parties also failed to adduce any evidence with regard to it.

19. The Complainant has stated that the opposite party no.1 has conducted the operation in hastily manner and failed to conduct adequate/required pre-operative tests and post-operative care. The Learned Counsel for the Complainant has submitted that the opposite parties failed to explain as to why the surgery was conducted in hastily manner. The literature which was downloaded provides for the steps to be followed prior to ACL surgery in the following terms:

What can a professional can do?

A Doctor or Sports injury Professional can assess the knee joint to confirm a torn ACL Diagnose any additional injuries If unsure you may be sent for an MRI scan or X-ray Refer for Surgery if required Provide a pre-surgery rehabilitation program in order to strengthen the knee and reduce the swelling in preparation for surgery. This will help produce the gest results following surgery.

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20. Admittedly, the Complainant was suffering from pain of his left knee. The opposite parties have medically treated him did not say that pre-surgery rehabilitation programme can be dispensed with. In the absence of any evidence contra, we hold the opposite parties fell short of degree of care in proceeding to conduct operation neglecting to do pre-operation rehabilitation programme. The dual benefit of the pre-surgery rehabilitation programme that it can strengthen the knee and reduce the swelling in preparation was done away. The pre-surgery rehabilitation programme said to help produce best result following surgery.

21. The literature about pre-surgery rehabilitation programme downloaded from the internet reads as under:

The risk of developing a stiff knee after surgery can be significantly reduced if the surgery is delayed until the acute inflammatory phase has passed, the swelling has subsided, a normal or near normal range of motion (especially extension) has been obtained, and a normal gait pattern has been reestablished. However actual guidelines concord that the indication for a reconstruction is persistent instability of the knee with complaints of giving way. This diagnosis is difficult to make in an acute situation. The guidelines recommend that ACLR should not be performed in the first weeks after trauma, in order to minimize the risk of operating on an asymptomatic patient.

As soon as the Acute Stage is over, it is important to prepare the knee for surgery as well as possible to optimise the outcome. The focus needs to be on strength and proprioception. Despite this, the physiotherapist must keep the injured knee in a quiescent state improving range of motion with minimal swelling. RICE and electrotherapy can be applied during several weeks ahead of the surgery in order to obtain full range of motion and to decrease joint effusion. The patient should also have a normal gait pattern:

because of that it is useful analyse the motion of the leg both in the swing phase of walking and in the one-leg-standing phase . Thus will help the patient to regain faster motion and strength after the surgery.

The length of this pre-surgical stage can last a few days or several weeks. Because of this, the role of the physiotherapist is also to maintain the compliance of the patient. For this reason, the rehabilitation program must have measurable weekly objectives to improve muscular strength and conditioning, to gain range of motion and to get better on proprioception. This will provide new goals to be reached week by week: the compliance for treatment will be maintained by the patient achieving these goals.

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During the pre-surgical stage is it important to offer different way to reinforce muscular strength and proprioception. Because of that it could be a good solution to give to the patient two different plans of exercises to do in the gym and at home. However it is very important to give to the injured knee sub-maximal loads to avoid knee swelling or re-injuring caused by lack of proprioception.

22. The complainant stayed for four days after the surgery and the post-operative period was uneventful. He was discharged from the opposite party no.2-hospital on 23.08.2020. The statement of the opposite party no.1 that the complainant was discharged with an assurance that after surgery the complainant would regain his earlier stratus and will be to work, walk and lead a normal life as the surgery was performed in the best manner and there was no problem in the same under any terminology.

23. The opposite parties did not file any documentary evidence regarding the surgeries, pre and post operative procedure followed by them, they simply filed copy of extract of diary of some persons names and their mobile numbers which is marked as Ex.B1 and copy of assessment and treatment chart of Physiotherapy clinic which was marked as Ex.B2.

24. In regard to the aspect of fitting of screw in the first surgery the literature reads as follows:

Anterior cruciate ligament (ACL) surgery involves placing screws and staples to hold the knee in place. These screws may cause pain in the knee. In some cases, ACL surgery can fail. The ACL works to stabilize the joint. It is crucial Trusted Source in stopping forward movements of the shin bone and limiting knee rotation. ACL injuries are common in athletes, particularly those who play football, basketball, and handball. In some cases, people with ACL injuries may require surgery. ACL surgery involves reconstructing the ligament. Surgeons use screws to attach the reconstructed ligament to the femur (thigh bone) and the tibia (shin bone). A person may experience pain after surgery due to the placement of these screws. Pain may also be a sign of ACL surgery failure. In this article, we look at the symptoms associated with ACL screw pain and surgery failure, causes, complications of ACL surgery, treatment, and when to contact a doctor. During ACL surgery, a surgeon replaces a person's anterior cruciate ligament. As it is a major surgery, all people should expect to feel the following:

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bruising swelling redness These will occur around the knee joint. Because the fluid in the knee may leak down the shin, bruising, swelling, and redness may also occur in the front of the shin and ankle. In some cases, the ACL screws may fail. Doctors sometimes refer to this as graft failure. Often, this requires additional surgery. Symptoms of knee graft failure or ACL screw pain may include:

knee pain that worsens with activity

pain behind the kneecap

pain when crouching or kneeling

a feeling of looseness in the knee

limping

stiffness

swelling

feeling unstable

Causes of ACL screw pain symptoms

ACL screw pain may be due to the placement of the screws. For example, if they are too close to the joint, this may cause pain or stiffness. It is also possible for the screw edge to rub on a tendon, resulting in pain. Additionally, ACL surgery can fail and cause pain.

The most common Trusted Source causes of ACL failure are:

trauma to the knee

misplacement of the tunnel

lack of graft incorporation

Surgical error

Some of these possible surgical errors include:

incorrect positioning of the tunnel for the ACL graft incorrect fixture of the graft at the shin or thigh bones incorrect placement of the graft resulting in it catching in the notch in the lower and of the thigh bone incorrect placement of screws, leading to them rubbing against tendons or being too close to joints

Although the replacement ligament is strong, injury is still possible. Additionally, if a surgeon uses metal screws, these can dislodge or move due to impact.

Screw type

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A surgeon can choose between two types of screws for ACL surgery: metal and bioabsorbable.

Metal screws can sometimes interfere with MRI scans and can be difficult to remove if further surgery is necessary. Summary

ACL screw pain is very similar to ACL surgery failure. A person may experience pain, weakness, stiffness, looseness, and instability. This may result from surgeon error, reinjury, aggressive rehabilitation, the type of screw used, or donor tissue rejection. In the case of surgical failure, a person may need to have revision surgery.

25. In view of forgoing literature, it is clear that the opposite parties failed in placement of the screw and it may be too close to the joint which causes pain or stiffness. It is also possible for the screw edge to rub on a tendon resulting in pain. Additional ACL surgery failed which causes pain. ACL screw pain may be due to the placement of the screws. For example, if they are too close to the joint, this may cause pain or stiffness. It is also possible for the screw edge to rub on a tendon, resulting in pain. Additionally, ACL surgery can fail and cause pain ultimately warranted multiple surgeries to rectify the mistake done by the opposite parties.

26. The learned counsel for the opposite parties has relied upon the medical literature and the following decisions:

27. The medical literature filed by the opposite parties is with regard to postoperative infection after anterior cruciate ligament reconstruction: prevention and management. It elaborates the causes of infection, preventions management therapeutic approach etc., they also filed literature with regard to Knee Infection After Anterior Cruciate Ligament Reconstruction. It shows case report, risk facts, diagnosis, treatment, functional outcomes and conclusion and recommendations. It is pertinent to note that even though they filed the medical literature but did not file any document regarding the detailed procedure pre and post operative precautions taken by them and the standard procedure in

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conducting the initial surgery and using of type of screw, placement of screw and also not mentioned why they removed the screw in second surgery. Except in their written version, evidence affidavit and written arguments denying the allegations made by the complainant and their rebuttal and procedure followed by them in treating the complainant but not any documentary evidence.

The decisions relied by the opposite parties are as follows:

M.A.Biviji vs Sunita and Others reported in (2024) 2 Supreme Court Cases 242 and contended a professional may be held liable for negligence on one of two findings: either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise with reasonable competence in given case, skill which he did not possesses. Chin Keow Vs Government of Malaysia & Anr (1967) WLR 813: and contended that negligence cannot be attributed tot a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. …. The medical profesionals are entitled to get protection so long as they perform their duties with reasonable skill and comptenece and in the interest of the patient. The interst and welfare of the patients have to be paramount for the medial professions.

The complainant relied on the following decisions:

1. Sagolsem Naran Singh Vs Director, RIMS and 3 Ors of State Commission Manipur in C.C.No.24 of 2010

wherein it was held:

In a case involving medical negligence, once the intital burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concverned, the onus then shifts on to the hospital or to the attending doctors and it si for the hospital to satisfy the court that there was no lack of care or diligence.

2. Mrs. Swapnil Mishra Vs Pushpanjali HealthcareYear of State Commission Delhi in CC No.474 of 2015

wherein it was held:

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A doctor cannot be allowed to misguide the patient just for earning money and held that a doctor is also not expected to make the patient scared.

3. P.B.Desai Vs State of Maharashtra and Anr (2013)15 SCC 481 wherein it was held:

Once, it is found that there is 'duty to treat' there would be a corresponding 'duty to take care' upon the doctor qua/his patient. In certain context, the duty acquires ethical character and in certain other situations, a legal character. Whenever the principle of 'duty to take care' is founded on a contractual relationship, it acquires a legal character. Contextually speaking, legal 'duty to treat' may arise in a contractual relationship or governmental hospital or hospital located in a public sector undertaking. Ethical 'duty to treat' on the part of doctors is clearly covered by Code of Medical Ethics, 1972. Clause 10 of this Code deals with 'Obligation to the Sick' and Clause 13 cast obligation on the part of the doctors with the captioned "Patient must not be neglected".

4. P.D.Hinduja National Hospital & Medical Reesearch Centre Vs Mrs Veera Rohinton Kotwal, II (2018) CPJ 342 (NC) wherein it was held that:

We find it a fit case to place reliance on the judgement of the Hon'ble Suprem,e Court in Arun Kumar Manglik Vs Chirayu Health and Medicare Private Limited & Anr reported in 2019 (3) SCALE 333 in which the Hon'ble Apex Court has laid emphasis on 'Patient Centric Approach' and observed that the Standard of Care' as enunciated in the Bolam Case must evolve inconsonance with its subsequent interpreteation by English and Indian Courts.

5. Kunal Saha vs AMRI Hospital reported in SCC 384(2014) wherein the Hon'ble Supreme Court has held that :

"The judgement of the supreme court of India in October 2013 awarded the compensation of 6 crores to Dr. Saha because the death of his wife caused the incorrect fraternity.

The fear that a precedent has been set and that such large amounts as compensation will become routine appears to be without foundation because the biggest component, over 5 crores, is on account of the income of the income that Anuradha could have earned within the US. During this judgement, which came 15 years after Anuradha's death, the court ruled on the quantum of

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compensation to be awarded to Saha, the proportion within which amount should be paid by the doctors and hospital, and whether any amount should be deducted for negligence by Saha.

The apex court held senior doctors as well as hospitals, guilty of medical negligence and asked Mukherjee and prasad to pay Rs 10 lakh each while Halder must pay Rs 5 lakh as compensation within eight weeks. Roychowdhary passed during the hearing of the case.

28. In brief, we have to come to the conclusion that the complainant was admitted to the opposite party hospital and the opposite party performed the surgery (Nucleoplasty clubbed with Annuloplasty). After this surgery the complainant was discharged on the very next day without giving proper post- operative care. When the complainant did not get any relief, he again came to the opposite party, and admitted in the hospital for two days and thereafter discharged. Even then, the complainant did not get the required treatment and went to other doctor and he was diagnosed as a case of bacterial sepsis. It developed from infection during operation or post- operation. There is direct vicinity of this bacterial sepsis with the surgery of the Opposite Parties. Because in 3 to 5 days from the date of discharge from the hospital of the opposite party, it has been diagnosed as bacterial sepsis. It clearly shows the deficiency and negligence on the part of the Opposite Parties. As we have discussed several articles and case laws which clearly establishes the fact that negligence and deficiency of service on the part of the opposite parties.

29. In our view, there is no need to delve further into proving the negligence of opposite parties. The principle of "Res Ipsa Loquitur," meaning "the thing speaks for itself," applies squarely to this case. It is evident that there was a definitive deficiency in the services provided by the opposite parties which was expected to maintain in taking patient care. However, it failed to meet these expectations, demonstrating both deficiency and unfair trade practices.

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30. There are certain duties of the doctor. The Hon'ble Supreme Court, in the case of Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128, it was held that the doctor owes to his patient certain duties which are:

a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in the administration of that treatment.

31. A breach of any of the above duties may give a cause of action for negligence and the patient may, on that basis, recover damages from his doctor. In the instant case, the Opposite Parties failed to follow the duties as stated above on all counts.

32. Negligence as held by the Hon'ble Supreme Court in Jacob Mathew v. State of Punjab (2005) SSC (Crl) 1369 that the breach of duty which one party owes to another. The duty can be in the form of an act or omission and it is referred to as the duty of care and due to the negligence of which it causes an injury to the person. In the case of medical negligence, it is the failure of medical practitioners to exercise certain acts or omission while discharging their duties with respect to their patients could not be saved.

33. In the case of Spring Meadows Hospital & anr. Vs. Harjol Ahluwalia & Anr. (1998) 4 SCC 39, Hon'ble Supreme Court observed that:-

"9. ..... Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. ........

10. Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to

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another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly."

34. Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not. A reliance is placed with regard necessity of expert opinion as observed in Judgment of the Hon'ble Supreme Court in V. Kishan Rao Vs. Nikhil Super Specialty Hospital & Anr. (2010) 5 SCC 513. The Court held:

"The expert opinion is not mandatory while adjudicating a Complaint of medical negligence. There is no whisper in the Medical Record regarding the reasons for the infection having set in and if this is a known complication what steps have been taken during that period."

35. Similarly, this case finds resonance with the decision of the Hon'ble Supreme Court in Smt. Savita Garg Vs. Director, National Heart Institute (2004) 8 SCC 56, where it was stated:

"Once a prima facie case is observed, the onus shifts on the Hospital and the treating Doctor to explain as to how a particular condition has occurred and explain the treatment that was rendered to the Patient."

36. The principles laid down by the Hon'ble Supreme Court in the aforementioned judgments are squarely applicable to the facts of the present case.

37. In view of the above facts, medical literature and legal position, we have to come to the conclusion, that the complainant was approached the Opposite Party No.1 for his knee injury on 18.08.2020 who is after undergoing examination was performed the surgery. After this surgery the complainant was discharged on 23.08.2020 after four days without giving proper post-operative care. When the complainant did not get any relief, he again came to the opposite party no.1 on

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04.09.2020 who again admitted him in the hospital performed second surgery by removing the screw on 09.09.2020 and he stayed for six days and thereafter discharged him. Even then the complainant did not get the required attention so he went again came to the opposite party no.1 who again admitted him and performed surgery on 21.09.2020 by removing another screw which was being fitted in improper manner and was discharged. Despite all three surgeries and stay in the hospital the complainant again came to opposite party no.1 who again performed surgery on 10.,10.2020. Since the first surgery the wound developed from infection during operation or post operation. The opposite party no.1 himself admitted that due to infection all the surgeries are warranted to treat the wound. It clearly shows the deficiency and negligence on the part of the opposite parties. Thereafter, the complainant approached the Osmania Hospital where the doctors after examination of the wound informed the complainant that due to multiple surgeries and infection, they are reluctant to treat the complainant. We have discussed several articles and case laws which clearly establishes the fact that negligence and deficiency of service on the part of the opposite parties.

38. So far as the quantum of compensation is concerned that, the Complainant claimed Rs.40,00,000/- under various heads. It is noteworthy that the total treatment expenses amounted not more than Rs.1,50,000/-. In our view, the basis of computing compensation under common law lies in the principle of 'restitutio in integrum' in Malay Kumar Ganguly vs. Sukumar Mukherjee and Ors., (2009) 9 SCC 221. which, when translated, refers to ensuring that the person seeking damages due to a wrong committed to him/her is in the position that he/she would have been had the wrong not been committed. This implies that the victim needs to be compensated for financial loss caused by the doctor's/hospital's negligence, future medical expenses, and any pain and suffering endured by the victim.

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39. As the Hon'ble Supreme Court noted in Sarla Verma vs. Delhi Transport Corporation case (2009) 6 SCC 121 that "The lack of uniformity and consistency in awarding compensation has been a matter of grave concern... If different tribunals calculate compensation differently on the same facts, the claimant, the litigant, the common man will be confused, perplexed, and bewildered. If there is significant divergence among tribunals in determining the quantum of compensation on similar facts, it will lead to dissatisfaction and distrust in the system."

40. In catena of judgments the Hon'ble Supreme Court had laid down different methods to determine 'just and adequate compensation'. It was held that there is no restriction that courts can award compensation only up to what is demanded by the complainant. We would like to rely upon few judgment of Hon'ble Supreme Court viz Sarla Verma & Ors. vs Delhi Transport Corp. & Anr. 2009 (6) SCC 121, Nizam's Institute of Medical Sciences Vs Prasanth S. Dhananka & Ors. 2009 (6) SCC 1, Dr. Balaram Prasad vs. Dr. Kunal Saha & Ors. (2014) 1

SCC 384.

41. It is true that compensation cannot be calculated in a perfect mathematical sense, cannot be precise and accurate, but has to be within certain broad guidelines, and within certain broad parameters. It was observed by the Hon'ble Supreme Court in Sarla Verma's case -

"While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation."

42. In the Nizam Institute case, the Hon'ble Supreme Court did not apply the multiplier method. In 1990, twenty-year old Prasant S. Dhananka, a student of engineering, was operated upon at the Nizam Institute of Medical Sciences, Hyderabad.

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Due to medical negligence of the hospital, Prasant was completely paralyzed. The court did not apply the multiplier method and awarded a compensation of Rs. 1 Crore plus interest.

43. The Hon'ble Supreme Court, in Kunal Saha case, very clearly mentioned that there were problems with using a straight- jacket formula for determining the quantum of compensation. It noted the problem in the following words:

"... this Court is skeptical about using a strait jacket multiplier method for determining the quantum of compensation in medical negligence claims. On the contrary, this Court mentions various instances where the Court chose to deviate from the standard multiplier method to avoid over- compensation and also relied upon the quantum of multiplicand to choose the appropriate multiplier ... this Court requires to determine just, fair and reasonable compensation on the basis of the income that was being earned by the deceased at the time of her death and other related claims on account of death of the wife of the claimant..."

44. Needless to state the quantum of compensation which is awarded has to be proportionate to the nature of the injuries and the compensation has to be awarded by keeping in mind the pecuniary damages and non-pecuniary damages suffered by the complainant. By pecuniary damages this Commission is referring to the actual loss sustained by the complainant, which can be determined in terms of money, by taking into account the oral or documentary evidence. Whereas for non- pecuniary damages this Commission is referring to the losses that the complainant has though suffered, but will not be able to prove for the reason that it can neither be calculated in terms of the money nor can it be proved leading documentary evidence. Perhaps the non- pecuniary damages can be figured out by looking into the facts of each case by taking into account the nature of injuries and the aftermath. It is required to be reminded to oneself that compensation in a case arising out of injury can never be granted on mathematical precision

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and invariably a good amount of guesswork is involved while determining the compensation in such cases.

45. Therefore, while there is negligence, the same is not so manifest that it had resulted in unconnected damage. There is inherent risk of collateral injuries for the surgery undergone by the complainant. When once such risk is inherent due to the medical condition of the patient, liability that can be cast upon the opposite parties is to that extent.

46. The Opposite Parties miserably failed to substantiate that, there is a need for four surgeries within a span of short period and also failed to show that, because of not following post-operative care, infection has been developed and because of the negligence of Complainant, the continuing surgeries are required to be done. In view of the same, the principles laid down in Judgment of the Hon'ble Supreme Court in V. Kishan Rao Vs. Nikhil Super Specialty Hospital & Anr. (2010) 5 SCC 513 is squarely covered for the facts of the present case and the maxim of "Res Ipsa Loquitur" will also applies.

47. Therefore, having duly considered the entire facts and circumstances of the case, in the interest of justice, in our considered view, compensation of Rs.25,00,000/- (Rupees Twenty-five lakhs only) is to be awarded for causing disability to the Complainant by the negligence of the opposite parties.

48. As the Complainant was disabled up to 49% as per the Certificate given by the Osmania General Hospital and he cannot drive the vehicle and he lost his all earnings because of the negligence treatment of the Opposite Parties and he has been suffering from the disability since 2020 and he had also to suffer with disability in future also. Hence, the Complainant is entitled for the Compensation of Rs.25,00,000/- which is just and reasonable and it would meet the ends of justice.

49. POINT NO.3:-

In the result, the Complaint is allowed in part and directing the Opposite Parties jointly and severally to:

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1. Pay an amount of Rs.25,00,000/- (Rupees Twenty-Five lakhs only) towards compensation for causing disability to the Complainant by the negligence of the Opposite Parties.

2. Pay an amount of Rs.25,000/- (Rupees Twenty-Five thousand only) towards costs of the Complaint.

3. Rest of the claims made under the Complaint are disallowed. Time for compliance 45 days from the date of receipt of this order. Dictated to Typist, typed by her, corrected and pronounced by us in the open Commission today the 11^thday of March,2025.

MEMBER MEMBER PRESIDENT

APPENDIX OF EVIDENCE

Witnesses examined for Complainant:-

Sri Syed Osman (PW1)

Witnesses examined for Opposite parties 1 to 3:-

Dr.R.Shashida (DW1)

Dr.R.Sgasgudharan Witnesses examined for Third party Dr.M.S.Praveen Kumar (DW2)

Exhibits marked on behalf of the Complainant:-

Ex.A1: is the copy of Prescription, Dt:13.07.2020 Ex.A2: is the copy of payment receipt for Rs.80,000/-Dt:1.07.2020 Ex.A3: is the copy of test reports(2 pages), dt:13.07.2020 Ex.A4: is the copy of payment Receipt for Rs.6,200/-, Dt:13.07.2020

Ex.A5: is the copy of Test Reports along with Discharge summary (6 pages), dt:30.07.2020

Ex.A6: is the copy of Discharge bill (2 pages), Dt:30.07.2020 Ex.A7: is the copy of Discharge summary(5 pages), Dt:18.08.2020 Ex.A8: is the copy of patient bills for Rs.35,000/-towards surgery charge, dt:18.8.2020

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Ex.A9: is the copy of Discharge bill and payment receipt (3 pages), Dt:29.08.2020

Ex.A10: is the copy of Discharge summary(3pages), Dt:12.09.2020 Ex.A11: is the copy of Discharge bill and payment receipt (3pages), Dt:12.09.2020

Ex.A12: is the copy of Discharge summary(3 pages), Dt:13.10.2020 Ex.A13: is the copy of Discharge bill and payment receipt(3 pages), Dt:14.10.2020

Ex.A14: is the copy of certificate for person with disability, dt:21.01.2023

Ex.A15: is the copy of identity card for person with disability, dt:27.01.2023

Ex.A16: is the copy of Aadhar card of complainant Ex.A17: is the copy of X-Ray Scan of leg, knee

Ex.A18: is the copy of legal notice, dt: 12.10.2023 Ex.A19: is the copy of Reply to Kegal Notice, dt:12.10.2023 Ex.A20: is the copy of Photographs

Exhibits marked on behalf of the Third Opposite party:-

Ex.B1: is the copy of extract of diary showing first treatment of complainant.

Ex.B2: is the copy of assessment and treatment chart Exhibits marked on behalf of the Opposite parties No. 1 to 3:-

--Nil—

MEMBER MEMBER PRESIDENT

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