IMPORTANT POINTS
1. Negligence - a mere accident is not evidence of negligence.
2. Medical Negligence – Error of Judgement - Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment.
3. Medical Negligence – Error of Judgment - an error of judgment on the part of a professional is not negligence per se.

ORDER

Dr. S.M. Kantikar, Presiding Member.—This Order shall decide both the Appeals filed under Section 21(a)(ii) of the Consumer Protection Act, 1986 against the Order passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (hereinafter referred to as the ‘State Commission’), which directed the Opposite Parties to pay a compensation of Rs.3,00,000/- to the Complainant.

2. Brief facts that on 29-11-1997 the Complainant Mr. Davis V.C. (hereinafter referred to as the ‘Patient’) underwent a Functional Endoscopic Sinus Surgery (hereinafter referred to as ‘FESS’) on his right sinus at Lissie Hospital, Emakulam. Thereafter, in year 2000, he suffered sinusitis of left side and on 14-06-2006, he underwent FESS at M/s. Lourdes Hospital, Ernakulum ((hereinafter referred to as the ‘OP-1’).It was performed by an ENT surgeon Dr. P. Y. Johan (hereinafter referred to as the ‘OP-2’). He was discharged on 19-06-2000. Thereafter, he developed severe headache and fever. It was alleged that the patient developed symptoms of intracranial injury. On 26-06-2000, the OP-2 told him that the head ache was due to the left side nasal packing. On 03-07-2000 the nasal packing on the left side was removed, but headache did not stop. He was again admitted in OP-1 hospital on 06-07-2000, and investigated. He was given higher antibiotics but headache persisted. He had vomiting on 09-07-2000 and the physician examined and then referred him to the Neuro Physician on 12-07-2000. CT Scan brain was done, which revealed regional odoema with partial effacement and elevation of left frontal horn and a small hyper-dense opacity in the inferior part of left frontal lobe about 1.2 cm above the ciiaphragma sellae. It was alleged to be a bony fragment measuring 5-6mm. Again another CT Scan was done on 17-07-2000 at OP-1 hospital, which showed same findings. The patient was discharged on 22-07-2000. It was further alleged that in order to conceal the negligence the OP-2 delayed to refer patient to a Neurosurgeon. It was also alleged that the medical records manipulated. He was then taken to Christian Medical College, Vellore (CMC). The CT Scan was performed and it confirmed Intracranial extension and frontal cerebritis along with abscess formation. He was advised to continue higher antibiotics for a further period of 6 weeks. After the above period, he again consulted the doctors at CMC, Vellore on 12-09-2000. The repeated CT Scan showed considerable improvement in the abscess and cerebritis, but the presence of displaced bony fragment was seen. Being aggrieved due to alleged medical negligence the Complainant filed the Complaint before the State Commission and claimed a sum of Rs. 13,00,000/- as compensation.

3. The Opposite Parties filed the joint written version and denied entire allegations. It was submitted that there was no surgical accident during the FESS and no surgery was done on fontal sinus. It was done in the maxillary and ethmoid sinuses and he was advised to continue medicines.

4. On hearing the parties and evidence on record, the State Commission partly allowed the Complaint and directed the Opposite Parties to pay a compensation of Rs.3,00,000/- to the Complainant.

5. Being aggrieved, the Complainant filed First Appeal No. 379 of 2011 for enhancement of compensation and the OPs filed First Appeal No. 112 of 2011 for dismissal of Complaint on merit.

6. We have heard the learned counsel on both the sides, perused the CT reports, medical record of OP-1 and the CMC, Vellore.

7. The case of the Complainant is that after FESS, a bony fragment was found in the frontal region of the skull which was the cause for infection and neurologic symptoms. It is pertinent to note the FESS was done on maxillary and ethmoid sinuses, which is away from frontal sinus. Thus possibility of injury to the frontal bone is very remote. The reports revealed the patient had mild infection at the displaced bone in the frontal sinus. The OP-2 treated the pati