National consumer disputes redressalcommission new delhi

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53. Regarding the allegation that respondent no.1 failed to recognize the setting in of Compartment Syndrome in time, it is stated that the Progress Chart prepared at InscolHospital contained his note about a suspicion of evolving Compartment Syndrome. He visited the Inscol Hospital at about 9 p.m. the same evening to check the condition of the patient and to monitor that the treatment suggested by him earlier in the evening was being closely followed. Respondent no.1 already suspected the onset of Compartment Syndrome and he specifically examined the patient and his affected leg for further signs of onset of Compartment Syndrome but found absence of any alarming temperature of the patient was normal and generally he did not seem to be in particular discomfort. The respondent no.1 left the Hospital after examining the patient at about 9.30 p.m. after giving necessary instruction to the Hospital staff.

54. At about 3.10 a.m. on 14.7.2003, respondent no.1 was woken up by a call from the resident doctor of respondent no.2-Hospital, who said that he was summoned by appellant no.1 at about 2.45 a.m. with complaint of severe pain in the affected leg and on examination he found that there was diminished sensation in the toes of the left foot and the pulses were feeble on palpation. The respondent no.1 reached the Inscol Hospital at about 3.10 a.m. and found that the appellant no.1 was in severe pain and on examination, the sensations were absent and the pulses in the foot were palpable through feeble. The condition of the patient had compounded and it required taking certain measures involving surgical intervention (Fasciotomy) for relieving the excessive pressure, which had built up in the muscle compartments of the leg. Explaining the procedure of Fasciotomy, respondent no.1 has pleaded that it involved two long incisions on both sides of the leg from the level of the knee to just above the ankle cutting through the skin, underlying layer of fat, the deep fascia which is a layer of tissue enveloping the muscles with a view to relieve the pressure already built inside the muscle compartments and to allow the swollen muscles to bulge out of the wound. The leg has four such muscle compartments and each one had to be decompressed in the fashion as stated above.

55. It is alleged that the line of treatment adopted by respondent no.1 is also supported by the authoritative publication titled Skeletal Trauma (Vol.I) and authorized by Bruce D. Browner, Alen M. Levine and Peter G. Trafton.   The Fasciotomy was performed at about 5 a.m. on 17.7.2003. After the surgical intervention, the condition of appellant no.1 started improving and the circulation to the affected limb was restored to its normal level as a result of which the normal color of the exposes muscles was also restored. The appellant no.2 was told that the wound was expected to bleed after the kind of surgery performed. The foul smell is peculiar but normal, emanating from any dressing soaked with blood and tissue fluids and it occurred despite the frequent change of dressing.

56. It is also stated that earlier, respondent no.1 contacted respondent no.3 who was a well known Plastic and Reconstructive Surgeon with special training in micro-vascular surgery with 14 years of experience behind him for the appropriate management of the Fasciotomy wounds and consequential  treatment. The respondent no.3 had reached the Hospital at  about 10.30 a.m. on 14.7.2003 itself and examined the appellant no.1 alongwith him and expressed satisfaction at the condition of the affected leg of the patient after the Fasciotomy procedure. The respondent no.3 advised a Color Doppler Study on the affected limb to assess the status of the blood flow in the arteries of the leg and also advised to start the patient on Plasmex, which is a fluid, which when administered intravenously helps in restoring the micro circulation of the limb, TabTrental was prescribed, which helps in opening up of the blood vessels in a limb. The respondent no.1 also inspected the wounds and found that the objective of the surgery was being achieved in the sense that the fractured leg appeared to be slowly gaining in health. It was denied that the wound was infected.

57. On 15.7.2003, appellant no.2 and other relatives requested the respondent no.1 to permit them to seek a second opinion on the course of treatment being adopted by him. It was readily agreed to. The appellant no.2 and other relatives called Dr. Kuldip Singh, an eminent and  reputed Senior Orthopaedic Surgeon of the city to have a look at the fractured leg of appellant no.1. Dr. Kuldip Singh examined  the patient the same evening and also went through the records and expressed complete satisfaction with the line of treatment adopted by respondent no.1 and recommended unreservedly to continue with the same line of treatment  It was denied that appellant no.1 experienced any abdominal or back pain or that he suffered from suffocation or breathlessness on 17.7.003. The grafting was done on the affected leg of appellant no.1 by respondent no.3 on 16.7.2003 and he did not suffer from any adverse effects from the same on the said day. The said grafting had absolutely nothing to do with the abdominal and back pain and grafting could not possibly have triggered either of the pains nor could it have caused suffocation or breathlessness.

58. It was clarified that abdominal pain and breathlessness, which was referred to by the appellants saying about same occurring on 17.7.2003, in fact had occurred on the morning of 18.7.2003 and respondent no.1 out of his concern for the appellant no.1, called Dr. Jayant Banerji to look at the patient and redress the said complaints. Dr.Banerji thoroughly examined the patient and as per the clinical condition of the patient ordered some investigations. Dr. Banerji called respondent no.1 on mobile phone at 12.45 p.m. and expressed his concern about the general condition of the child and said that he would like to discuss the results of the investigations already prescribed with respondent no.1. Dr. Banerji also called respondent no.3 as well Dr. Banerji in the light of the findings of his investigations and on discussing the matter threadbare amongst themselves, it was decided that in view of the shallow breathing of the appellant no.1 and the findings of the investigations showing falling Oxygen levels in the blood stream of appellant no.1, it would be appropriate to shift the appellant no.1 to Intensive Care Unit of the Inscol Hospital. Respondents no.1, 3 and Dr. Banjerjidiscussed the findings of investigations, which had revealed that appellant no.1 had developed a complication called Adult Respiratory Distress Syndrome (ARDS), which is a clinical syndrome in which there is a disturbed function of the oxygen exchange system of the lungs leading to  a fall in the oxygen levels of the blood and consequent breathing problem for the patient so affected. This was explained by respondent no.1, respondent no.3 and Dr. Banerji to appellant no.2 and her relatives/friends present at that time and they were told that the complication had suddenly developed in appellant no.1 and consequent remedial actions, which needed to be taken immediately. The appellant no.2 wanted that the patient be shifted to Intensive Care Unit and put on a Ventiator, which facilities were available at Inscol Hospital. It was explained that the option of shifting appellant no.1 to some other Hospital like PGIMER or GMCH, Chandigarh was also open to them. The complications developed by the patient were not on account of any line of treatment adopted by the respondent  no.1 and his fellow doctors, which could have triggered the symptoms for which the appellant no.1 came to suffer from.  The appellant no.1, it was alleged, developed the said complications for reasons beyond the control of a doctor and in spite of the best care exercised by the respondent no.1 and the fellow doctors.

59. It is also alleged that appellant no.2 was insistent that her child should be shifted to some other hospital. Appellant no.2 was made aware of the risks involved in shifting the patient in  the state in which he was at that time. However, appellant no.2 decided to shift her child out of the Inscol Hospital. Respondent no.1 and doctors namely respondent no.3 and Dr. Jayant Banerji in  order to ensure smooth and safe shifting of appellant no.1 first carried out a trial run of the process of shifting, and for that purpose  an ambulance from respondent no.2- Hospital was prepared with all necessary monitoring and support system equipment like Pulse Oximeter, Oxygen cylinders, Defibrillator, Suction apparatus, BP monitoring equipment and a crash cart with all emergency drugs and the same were checked by the consultant anesthetist Dr. RashmiSaluja  prior to the actual shifting process. Dr. Banerji had already processed to the GMCH to oversee the arrangements for receiving appellant no.1 in the ICU there. The consultant of Anesthesia, in charge of the ICU at GMCH had already been consulted and requested to be personally available to receive appellant no.1 on arrival at the emergency of the GMCH. Once a go ahead was received from Dr. Banerji, the shifting process was started and the patient was shifted by the staff of Inscol Hospital to the waiting ambulance. Dr. Rashmi Saluja and the ICU technician accompanied the patient in the ambulance while closely monitoring his parameters. Respondent no.1 and 3 followed the ambulance in their respective cars. On arriving at the emergency gate, Dr. Banerji and Consultant Anaesthetist of GMCH, Dr. Sanjeev Palta were present physically to receive the patient. All admission formalities were deferred on the request of respondent no.1 till such time the patient was safely on to the ventilator at ICU of GMCH. It was past midnight when respondent no.1, respondent no.3, Dr. Jayant Banerji and Dr. Rashmi Saluja left the premises of the GMCH after ensuring that the appellant no.1 was well ensconced on his new ventilator at GMCH.

60. The treatment of appellant no.1 provided at GMCH was referred to by respondent no.1 who denied any medical negligence on his part in prescribing the treatment atrespondent no.2 Hospital and asserted that the complication arose    because of the condition beyond his control.  

61. It was strongly denied that any damage much less irreversible and life threatening was caused to the affected leg of the patient by virtue of the treatment given to him by respondents no.1 and 3. The various averments regarding negligence on his part were categorically denied.

62. The quantum of compensation claimed was also denied and it was alleged that the claim has been made of a highly inflated amount.  

63.  Respondent no.2 – Inscol Hospital, in its written statement took a preliminary objection that the allegations made in the complaint against it are vague, non specificand general in nature regarding negligence, rudeness on the part of Hospital staff. The other preliminary objection raised is that appellants have made  specific allegation of manipulation of record against the Hospital and this matter cannot be adjudicated upon in a summary procedure under the provisions of Consumer Protection Act, 1986. It has also been alleged that in case  there was any negligence on the part of resident doctor, he should have been impleaded as party for proper adjudication of the matter.

64. On facts, the pleas raised by the respondent no.1 were affirmed and it was contended that respondent no.2 had no role to play  regarding the treatment of the patient i.e. appellant no.1. It was further pleaded that the staff of respondent no.2 Hospital had taken proper care of the patient and handled the patient faithfully as per the instructions of Specialist/Respondent No.1 who had been constantly monitoring the condition of the patient and consulting other Specifications whenever necessary. The allegations made in the complaint about shifting of the patient to some other Hospital were denied. It was, however, mentioned that the appellant no.2 was told that she had the option to shift her son i.e. appellant no.1

65. Respondent no.2 further pleaded that since the Specialist Consultant  reviewed the whole case regarding the condition of appellant no.1, it was decided to shift him to the Intensive Care Unit and put him on Ventilator, which was done by the staff of the Inscol Hospital. The patient was put on Ventilator at 3 p.m. on 18.7.2003. It was mentioned that the appellant no.2 insisted upon shifting appellant no.1 to some other Hospital. The allegations that the delay was caused on account of non-settlement ofHospital  dues were denied. It was alleged that in fact the concern staff of respondent no.2 and Specialist Consultants was about well being of the patient who was being shifted. It was submitted that the patient was on regular Ventilator so long he was in respondent no.2 Hospital and was on Manual Ventilator as soon as he was shifted to Ambulance. All the instructions issued by respondent no.1 were implemented with due diligence by the staff of respondent no.2-Inscol Hospital.

66. The allegations of deficiency in service on the part of respondent no.2 were specifically denied. The respondent no.2 had duly qualified senior doctors and other staff to assist the Specialist Consultant, respondent no.1. The Hospital has been maintaining a very high standard of sterilized environment for the patients and also duly sterilized operation theatre and sterilized and autoclaved instruments. The staff of respondent no.2 Hospital has been providing full medical and other help as per the instructions of Specialist Consult ant. The respondent no.2 alleged that it did not commit any deficiency in rendering service and no compensation is recoverable from it. Even otherwise the claim has been highly exaggerated and the alleged loss is remote.   

67. Respondent no.3-Dr. Y. Caplash in its written statement took the plea that appellants have not been able to state or prove that there has been any deviation from the standard medical procedure on the part of respondent no.3 In fact, respondent no.3 has treated the patient with due diligence and according to the standard health care management. The respondent no.3 has described himself as a Plastic Surgeon of great repute and has been practicing as such for the past 14 years and has performed variouskind of surgeries and always followed the standard protocol. The respondent no.3 is a conscientious doctor and has  treated the patient with due care and diligence. The allegations of medical negligence on his part were denied.

68. It is further stated that visited the Hospital at about 10.30 a.m. on 14..7.2003. The patient was physically examined.  The foul smell referred to by the complainants is nothing other than a peculiar smell on account of bandages, which had been applied on the wounds. After inspecting the wound, respondent no.3 advised a coloured Doppler study on the affected limb so as to be able to correctly assess the status of the blood flow in  the arteries of the affected limb.  The report showed that there was adequate blood flow in the affected leg. The respondent no.3 put the patient on ‘Plasmex’, which is a fluid, which when administered intravenously helps in restoring the micro-circulation of the limb. The question of closing of the wound by grafting did not arise in the case of appellant. It was denied that the grafting procedure was performed by respondent no.3 without waiting for the expiry period of two days. The patient was examined on 14.7.2003 at about 10.30 a.m. and the grafting was done after a period of 48 hours on 16.7.2003 at about 2.30 p.m.  

69. Respondent no.3 visited the patient on 17.7.2003 and found him comfortable. It was alleged that he was called alongwith Dr. Sanjay Saluja by Dr. Jayant Banerji who expressed his concern about the general condition of the patient. Dr. Jayant Banerji also wanted to discuss the results of the investigations ordered by him and it was decided that in view of the shallow breathing of patient and the findings of investigations ordered by Dr. Banerji, which showed falling oxygen levels in the blood stream of the patient, it would be appropriate to shift the patient to Intensive Care Unit of respondent no.2 – Inscol Hospital. This decision was taken as the patient had developed a complication called Adult Respiratory disturbed function of the oxygen exchange system of the lungs leading to a fall in the oxygen levels of the blood and consequent breathing problem for the patient so affected. The respondent no.3 specifically pleaded that he was not a regular doctor on the rolls of respondent no.2 –Inscol Hospital and he was only a visiting doctor on call.

70. It was denied that there was any case of mishandling of medical treatment or medical care given to the patient by respondent no.3. He submitted that the amputation of the left leg of the patient could not be attributed to any procedure that was done by him. The only procedure performed by respondent no.3 was to graft the wounds by thin split thickness meshed skin taken from the patient himself.

71.       Respondent no.4 is the Proforma respondent. Professor H.M. Swami, Director Principal, Government Medical College & Hospital, Chandigarh, filed his affidavit on behalf of respondent no.4 detailing therein the procedures undertaken at the G.M.C.H.

72. The State Commission after going through the record and after hearing the learned counsel for the parties,  vide its impugned order dismissed the complaint.

73. Being aggrieved, the appellants have filed the present appeal.

74. We have heard the learned counsel for the parties and have gone through the record as well as the written submissions.

75. It has been argued by learned counsel for the appellants that respondent no.1 diagnosed and found fracture of upper end tibia and displaced epiphysis of tibilatuberosity. Appellant no.1 was admitted on instructions of respondent no.1, at respondent no.2 hospital, where the fractured leg was put to plaster after general anesthesia. Thereafter, respondent no.1 treated the patient casually and after putting the plaster directed to discharge the appellant no.1 once fully awake as apparent from the prescription slip. The patient was discharged at 9.30 p.m. from the hospital despite complaints made by him about severe pain in the left leg due to tight application of plaster. Since, the injury was grievous in nature, respondent no.1 ought not to have discharged the patient on the very day of operation.

76. It is further contended that after various complaints and repeated requests, respondent no.1 visited the patient on 12.7.2003 at 8.00 p.m. Admittedly, the plaster was tight since respondent no.1 gave slit on upper part of the plaster which is apparent from the prescription dated 13.7.2003. It is also apparent from the prescription slip that pain was still persisting and there were blisters which clearly signify that the pain subsisted, obstructing the blood vessels and  the muscles of left leg were in process of dying and impending gangrene and blisters.

77. Thus, respondent no.1 had treated the patient in a casual manner and casually applied the dynacast plaster so tight that on  regaining consciousness, appellant no.1 started complaining about serious pain in his left leg to which respondent no.1 hardly gave any attention and which led to formation of blisters and gangrene in the skin, which had been admitted in the various portion of the pleadings as well as reflected in the order of the State Commission. 78.        Further, despite various requests and complaint regarding the application of dynamic plaster, respondent no.1 took the matter casually which admittedly resulted in taking measures involving surgical intervention (Fasciotomy) for relieving excessive pressure, which had been built up in the muscle compartment of the leg. The Fasciotomy was performed at about 5.00 am on 14.7.2003, after almost 72 hours from the time of injury, without any proper medical tests/reports.

79. It is further contended that in order to cover up the lapses and casual conduct of respondent no.1, grafting was performed on the affected leg by respondent no.3 on 16.7.2003.  It was also revealed after examining and investigation by Dr. Banerjee, that appellant no.1 had developed a complication called “Adult Respiratory Distress Syndrome” (ARDS) which is a disturbed function of Oxygen levels of the blood. Consequently, breathing problem was affected and the patient was put under ventilation, as could be seen from the Discharge record.

80. Learned counsel for appellants, in support of tits contentions has relied upon following judgments;

    i)  Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others,

        (2009) 9 Supreme Court Cases 221;

    ii)  Nizam’s Institute of Medical Sciences   Vs. Prasanth S. Dhananka and others,

        (2009) 6 Supreme Court Cases 1;

   iii)  R.K. Malik and another Vs. Kiran Pal and


         (2009) 14 Supreme Court Cases 1;

    iv)  Master Mallikarjun Vs. Divisional

         Manager, The National Insurance Company

          Ltd. and another,

         (Civil Appeal No.7139 of 2013 decided by

Hon'ble Supreme Court on 26th August,   2013 and

    v)   Rajinder Singh Dogra Vs. Dr. P.N. Gupta,

         First Appeal No.248 of 2002 decided on

         16.7.2012 by this Commission).

81. On the other hand, learned counsel for respondent no.1 has argued that patient had suffered a complicated injury and fracture. He was immediately attended to in the emergency and was given the requisite First Aid. In view of the injury suffered, Respondent no.1 advised that patient needed to be admitted in the Hospital and treated for his fracture under general  anesthesia. At about 3.30 p.m. the appellant no.1 was given the necessary treatment for fracture of major long bone Tibia by closed reduction procedure and plaster application. It is important to note that plaster was applied with adequate amount of cotton padding underneath and all around the leg to sufficiently provide for swelling which could occur following the fracture injury.  Patient left the hospital only after making sure that he was comfortable and his limb was elevated on pillows so as to help the speedy joining of the bone. Throughout that evening, respondent no.1 remained in touch with the attending doctors of the hospital, so as to monitor the condition of the patient and to give them the necessary instructions. Respondent no.1 before recommending discharge of the patient, had made sure after seeking the necessary inputs from the attending doctors, that condition of the patient was satisfactory.

82. On the next day i.e. July 12th 2003, when Respondent no.1 received a call from Appellant no.2 at about 12 o’clock in the day about mild pain in the affected leg of the patient, he prescribed a second pain killer for the patient. He received another call at 7.30 pm on the same day, whereupon he decided to make a house call even though it was already 8 pm. Respondent no.1 had taken care to carry with him an electric plaster-cutter, should the need for the same arose. On examining the patient, respondent no.1 found that in spite of there being sufficient cotton padding beneath the plaster and all around the leg of the patient inside the plaster, there was some swelling which is a natural consequence of any fracture especially the kind suffered by the patient. The respondent slit open the plaster through all its layer and cotton padding from the toes to right up to the mid thigh and spread open the same in a manner that exposed the skin of the injured leg.

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