Medical negligence requires clear evidence of fault; mere complications from surgery after a lengthy delay do not establish negligence.

1. The above complaint has been filed under S.17 of the Consumer Protection Act, for short the Act.

2. Complainant sustained fracture on his left arm in a motor accident during 1996 and underwent Open Reduction Implant Fixation (ORIF) at the Medical College Hospital, Thiruvananthapuram. Thereafter he went abroad and was working as a mechanic in Dubai. Whileso pain developing to his left arm, he visited the 1st opposite party doctor working as Professor of Orthopaedic in Medical College Hospital. She advised for removal of the implant and the operation was conducted on 18.4.2009. The implant could not be removed as its screw heads were broken. According to complainant the 1st opposite party carried out the operation for removal of the implant in negligent and careless manner that resulted in broking of the screw heads and causing injury of radial nerve of the left hand resulting in wrist drop. Complainant thereafter underwent treatment in S.P. Fort Hospital for better management of radial nerve injury. Still the injury could not be cured and complainant is unable to move his left arm. Imputing deficiency in service alleging medical negligence against the 1st opposite party doctor and also other two opposite parties, complainant has filed the above complaint claiming compensation of a sum of Rs. 32,80,000/- for the loss and injury suffered and Rs. 12,000/- as cost of litigation from the 1st opposite party and two others, the Director of Medical Education and Secretary to Government, Health Department.

3. The 1st opposite party filed her version. The 2rd opposite party on his own behalf and also for the 3rd opposite party filed version styled as additional version.

4. Maintainability of the complaint was challenged by the 1st opposite party as barred by limitation, and also contending that complainant as a patient availed service of the Medical College Hospital free of any charge and such service does not come under the Consumer Protection Act. When the complainant approached for removing the implant fixed in 1996 he and his bystanders were informed of the risk factors associated with the surgery including chance of radial nerve injury and difficulty or obstruction of removal of implant, according to this opposite party. Complainant and his bystanders voluntarily agreed to the surgery of implant removal and it was fixed on 18.4.2009. Surgery was proceeded under all aseptic care and precaution and then the implant was seen embedded inside the bone and the screw heads were found broken, and hence it could not be removed. Post operatively the patient developed wrist drop which is a known complication associated with implant removal procedure especially when it is done after considerably long duration. Complainant was given necessary supportive treatment but nerve injury recovery usually takes considerable time. Complainant did not turn up for follow up treatment in the hospital. Denying the allegations of negligence and carelessness and contending that radial nerve injury was not caused on account of her fault, it is stated that screw heads of the implant were found broken and the implant was embedded inside the bone. Complainant did not seek removal of the implant within a reasonable time after fixation and the consequent delay, according to this opposite party, contributed to the complications. Permanent disability allegedly caused to the complainant on account of radial nerve injury is disputed by this opposite party contending that he has not suffered any such disability. Asserting that the