83. It is further argued that on the next afternoon i.e. 13th July, 2003 at about 1.30 p.m., respondent no.1 received a call from appellant no.2 about greater pain in the leg of the patient. Respondent no.1 recommended that patient be brought to his clinic immediately. The patient was brought to his clinic at about 2.15 p.m., whereupon his plaster was removed completely and it was recommended that he should be admitted in the hospital forthwith. It is important to mention here that prescription slip written by respondent no.1 on 13th July, 2003, contains the recording of the complaints of the patient as stated by him to Respondent no.1 on 13th July, 2003 and not the observations of the respondent no.1, qua the patient as to his condition existing on 12.7.2003, as has been wrongfully sought to be projected by the appellants in their complaint. At about 4 o’clock on the said day, respondent no.1 had noticed the possible onset of compartment syndrome. However, at that stage it was merely a suspicion and the same is indicated by the question mark in the top line of the progress chart. With a view to reverse the possible onset of C.S., respondent no.1 gave necessary instructions to the patient asking him to carry out active movements of the toes. Respondent no.1 again visited the patient at 9 pm the same day, to further check the condition of the patient. It is important to mention here that Fasciotomy cannot be undertaken unless the pressure inside the affected limb builds up to a certain level. The experts differ on the right pressure warranting fasciotomy. To some experts, 10-30 mm Hg is the right level requiring fasciotomy, to others fasciotomy should not be performed unless the pressure in the limb rises to 45 mm Hg, meaning thereby that there is no way of making a precise judgment as to the time or to the pressure built up in the limb, when a surgeon could be absolutely sure about carrying out the fasciotomy on the patients.
84. Further, it is argued that the equipment for measuring pressure inside the limb in order to determine the onset of compartment syndrome to a level necessitatingfascioitomy, was neither available at the time fasciotomy was carried out by Respondent no.1, in any hospital in Chandigarh, nor the same is available even today in any of the Premier Institutes/Hospitals of Chandigarh including PGIMER and GMCH. A doctor therefore, in similar circumstances has no option but to rely upon his clinical judgment alone, with regard to the precise moment in time, requiring fasciotomy. It is important to mention here that the fasciotomy itself is fraught with dangers and risks to the patient. A study of experts shows that the mortality rates in fasciotomy can be as high as 11-15% and amputation rates of fasciotomy are even higher at 11-21 % of all the cases where fasciotomy is undertaken. Reference in this regard was made to the medical literature.
85. Thus, it is contended that no doctor can afford to rush into the procedure like fasciotomy on mere suspicion of onset of the same, because doing so would expose the patient to the dangers of mortality and amputation by itself. The Fasciotomy was performed at about 5 AM on 14th July, 2003. Thereafter, on 14th July, 2003, following thefasciotomy, follow up treatment was undertaken, aimed at preventing infection in the muscles which had been rendered exposed as a result of the fasciotomy, which included skin grafting.
86. Further, on 15th July, 2003, appellants requested that they should be permitted to seek a second opinion on the course of treatment rendered. Respondent no.1 readily agreed to the said suggestion. Consequently, Dr. Kuldip Singh, a senior Orthopedic Surgeon, examined the patient and found that the line of treatment adopted by respondent no.1 was the right one.
87. On 16th and 17th July, 2003, condition of patient was being closely monitored by respondent no.1 with the help of the hospital staff and he saw to it that follow up treatment was regularly rendered to the appellant no.1.
88. Further, on 18th July, 2003, Appellant no.1 developed abdominal pain and breathlessness. In order to deal with the said symptoms, respondent no.1 sought the help of another expert Dr. Jayant Banerji who undertook a thorough examination of the patient and carried out various tests. Thereafter, it was jointly decided to shift the patient to the ICU where he was put on to a Ventilator. On the option exercised by the appellants, meticulous care was taken by respondent no.1 with the help of other doctors to ensure smooth and safe shifting of the patient from INSCOL Hospital to the GMCH, Respondent no.4 Hospital. Even after the patient had been shifted to GMCH, respondent no.1 closely followed the progress of the patient in the said hospital.
89. It is further contended that in order to make out a case for lack of skill on the part of the doctor, it is incumbent upon the complainant to prove his case with the help of an expert witness. The said condition is necessary, because it would be dangerous to accept the allegations of the complainant as to negligence of the doctor without the corroborative evidence of an expert of the field concerned. In fact, on the request of the appellants, services of another senior Orthopaedic doctor namely Dr. KuldipSingh, were engaged, specifically with a view to see whether the line of treatment being rendered by respondent no.1 was right or not. Dr. Kuldip Singh examined the patient and found that the line of treatment adopted by respondent no.1 was correct and according to the prescribed medical procedure.
90. Another argument advanced by learned counsel is, that the respondent no.1 is not only a highly qualified orthopedic doctor but also has a combined experience of more than 19 years behind him of treating patients suffering from different kinds of fractures of various limbs. He sees to it in every case that plaster is applied with sufficient amount of cotton padding beneath the plaster and all around the affected limb.
91. It is further argued that appellants have relied upon only two documents in their attempt to make out a case of inadequate fasciotomy, the first being affidavit of Prof. Swami and the second is Discharge Summary, i.e. Exhibit C-7. 92. The affidavit of Prof Swami cannot be relied upon, as he never examined the patient himself and his affidavit is based upon the information given to him and not accessed by him first hand. Moreover, in submitting that affidavit, GMCH authorities have bought immunity for themselves by helping the appellants in their allegations against respondent no.1 to 3. Therefore, being interested party themselves, any testimonial on behalf of such a party is not worthy of any credibility at all. Secondly, the discharge /follow up card Exhibit C-7 has been prepared at the time of discharge of the patient on 14.8.2003 when the amputation of the leg of the patient had already taken place on 1.8.2003 after the patient had been under their care for two weeks. Therefore, authorities at GMCH prepared a record which would shift the blame for amputation on respondent no.1 and would allow them to go sot free from the allegations of unjustified amputation and incompetent handling of the case of appellant no.1. The said record therefore is false and has been prepared with ulterior motives and thus cannot be relied upon at all.
93. It is also argued that even on the second aspect of negligence i.e. lack of competence, the allegations of the appellants are unfounded. It is well recognized that in fracture injuries diagnosis of compartment syndrome can be difficult. Therefore, even in those cases where steps to remedy the compartment syndrome, such as fasciotomyhave not been taken on account of failure to diagnose the same, the doctor cannot be held liable for negligence on account of lack of skill or competence, whereas in the present case, admittedly Fasciotomy was performed by respondent no.1 at the very first firm indication of onset of Compartment Syndrome.
94. In support, learned counsel for respondent no.1 has relied upon the following judgments;
i) Jacob Mathew Vs. State of Punjab and another,
(2005) 6 SCC 1;
ii) Martin F. D’Souza vs. Mohd. Ishfaq,
(2009) 3 SCC 1;
iii) Kusum Sharma and others Vs. Batra
Hospital and Medical Research Centre & others
(2010)-(2) Civil Court Cases 015(SC);
iv) C.P. Sreekumar (Dr.) M.S. (Ortho) Vs.
(2009) 7 Supreme Court Cases 130 and
v) Malay Kumar Ganguly Vs. Dr. Sukumar
Mukherjee and others
(2009) 9 Supreme Court Cases 221. 95. On behalf of respondent no.2, it has been contended that appellant no.1 was under treatment of respondent no.1 in his clinic and respondent no.1 got him admitted in Respondent No.2 hospital. It was respondent no.1 who in consultation with appellant no.2 availed help of other Medical Experts in management of the patient. If there is any deficiency in service on the part of any of those medical experts, respondent no.2 is not responsible for the same. In so far as providing qualified staff is concerned, except for vague allegations that respondent no.2 had not provided qualified staff, no specific case has been mentioned. In the affidavit of Daljit Singh Gujral, it is specifically mentioned that only qualified staff is employed and has given qualification of various staff members at the relevant time. It is also contended that it was not at the instance of respondent no.2, that patient was discharged on 18.7.2003. Respondent no.2 had taken all the steps to prepare the Discharge papers and equip the Ambulance with Life saving gadgets. In fact, the entire process took about 1½ hours and in the meanwhile, patient was kept in the I.C.U. In fact, a Doctor and a technician was deputed by the respondent no.2 to travel with the patient in the Ambulance. It is a wrong allegation that discharge was held up on account of payments. Last payment was by chequereflected in Accounts for 21-7-2003. The extent of unfounded allegations can be gauged from the fact, that it is alleged that patient was not put on B.B. Splint on 12.7.2003 and on 13.7.2003 by respondent no.1 and respondent no.2 In this period patient was under treatment at the Clinic of respondent no.1.
96. On behalf of respondent no.3, it has been contended that skin grafting was done after a period of 48 hours. Dr. Caplash attended to the patient on 14.7.2003 at about 10.30 a.m. The progress chart of Inscol Hospital will show the time he attended the patient after the fasciotomy was done. The fasciotomy was done on 14.7.2003 at 5.00 am. On 14.7.2003, the complainant was again looked at by the Dr. Caplash as is evident from the noting on the Inscol Chart. On 16.7.2003 Dr. Caplash changed the dressing of the patient in the morning and found that the swelling had reduced considerably. The skin grafting done on the 16.7.2003 at 2.30 a.m. Thus, it is wrong to say that Dr.Yogesh Caplash did not wait for a period of 48 hours to do the Skin Graft. That Skin Graft is a biological dressing to prevent infection that might occur due to fasciotomyprocedure. Dr. Caplash used a thin meshed skin graft which would allow proper draining of fluid from the wound and which would encourage the healing process.
97. Learned counsel for respondent no.3 also referred to an article published in SKELETAL TRAUMA VOL.1, which pertains to management of compartment syndrome and after care of fasciotomy wounds. In the said article it is specified that for after care of fasciotomy wound, the wound is inspected after a period of 48 hours of performing the fasciotomy procedure and any necrotic tissue is removed. The wound management would then depend on skin grafting or secondary wound closure. According to an article pertaining to treatment of ACUTE Compartment Syndrome of the leg it is mentioned that early skin grafting of the fasciotomy wound reduces the complications associated with it. Thus, the skin graft is nothing other than a biological dressing which is done on the fasciotomy wound after waiting for a period of 48 hours as per standard medical procedure. There has been no deviation on the part of O.P. No.3 while treating the fasciotomy wound of the complainant while applying the skin graft. No evidence has been led to show or prove that skin graft is likely to cause MODS, ARDS, SEPTICEMIA, RHABODOMLSIS and MUSCLE NECROSIS as alleged by the complainant. There is no medical negligence on the part of respondent no.3 in the treatment of the complainant or any deficiency in service as alleged.
98. In support of its case, learned counsel has relied upon following decisions;
i) Gopi Ram Goyal and others Vs. National Heart Institute and others,
2001 (2) CPC 262 NC
ii) Mrs. Kiran Bala Rout Vs. Christian
Medical College and Hospital and
2003 (2) CPC 17 NC;
iii) Dr. S. Gurunathan (Dead) Vs. Vijay
2003(2) CPC 28 NC;
iv) Shantaben Muljibhai Patel and others
Vs. Beach Candy Hospital and Research Centre and others
99. Lastly, on behalf of respondent no.4, it has argued that this arrayed as a proforma respondent without alleging any deficiency in service or negligence on its part. As a matter of fact, the appellants in para 30 of the petition have complimented the action taken by respondent no.4, by stating “that the doctors of O.P. No.4 rendered exemplary professional expertise and with their untiring efforts for a period of about one month, the left leg of the child, i.e. complainant no.1 had to be amputated to save the life of the child”.
100. It is contended that Prof. Swami in his affidavit (prepared on the basis of the comments of the treating specialist) never mentioned that he himself or treating physician at GMCH has seen the plaster. The patient was brought to GMCH, without plaster Prof. Swami has rightly said in his affidavit based on the opinion of the specialist from Department of Orthopaedic, that tight plaster is one of the precipitating clauses of compartment syndrome.
101. It is further contended that patient was shifted to GHCH in a critical condition as is evident from the facts recorded in the hospital record of the patient. In an effort to save the leg of the patient, orthopaedics specialist at GHCH decided to explore the wounds of the patient and carry out the debridement. At that time it was found thatFasciotomy was grossly inadequate. A proper Fasciotomy of all the compartment of the leg was carried out. Following this procedure there was slight improvement in the vascularity of the leg. However, due to extensive necrosis of the muscles and severe infection the general condition of the patient failed to improve significantly. At that stage in order to save the life of the patient, it was decided by the board of doctors that his leg may be amputated. After taking permission from the patient’s attendants, his leg was amputated. It is further contended that GMCH took appropriate decisions after the shifting of the patient to GMCH in serious condition.
102. It is further contended that as per patient’s record, there was little or no evidence of vascularity in the affected leg. A decision was made to amputate the leg in order to save the life of the patient. Since, the patient was not suffering from any other illness it can be safely derived that only reason for his deteriorating general condition was due to worsening of the condition of his leg due to impending gangrene and infection. GMCH tried its best to save the limb by doing repeat fasciotomy and then again debridement. Since, bad condition of the leg was threatening the life of the patient, only then it was decided to carry out amputation.
103. In the context, as to what constitute ‘Medical Negligence’, Hon’ble Supreme Court has laid down the law in “Jacob Mathew (Supra)”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 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. 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’s case  1 W.L.R. 582, 586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word ‘gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ‘grossly.’
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”
104. In the light of decision of Jacob Mathew (supra) in the present case, it is to be seen;
“(i) whether the plaster applied was so tight that it pressed the nerves and muscles and also blocked the smooth flow of the blood resulting in complications in the left leg beside causing considerable pain, which ultimately resulted in the amputation of the leg of the patient;
(ii) whether such act on the part of the respondent no.1 would come within the ambit of “Medical Negligence.”
105. It is well settled that initial onus on proving its case rest upon the complainant. However, when he discharges that onus and proves his case by way of evidence, then the burden will shift upon the opposite party.
106. It is an admitted fact that on 11.7.2003, appellant no.1 while playing in his school sustained a fracture in his left leg and was taken to the clinic of respondent no.1 where the fractured leg after reducing it under General Anesthesia in the Operation Theatre, was plastered by respondent no.1.
107. The case of appellants is that the plaster put on the leg of appellant no.1 was very tight which caused acute and severe pain. The suffering of pain by the appellantno.1, was immediately brought to the notice of the respondent no.1 who ignored the same and instead prescribed certain pain killers and injections. Inspite of acute and severe pain being suffered by appellant no.1, the respondent no.1 did not take any remedial /corrective measures and instead, discharged the patient from the hospital at 9.30 p.m. As the pain did not subside, then on 12.7.2003 in the night after repeated calls, respondent no.1 visited the residence of the appellants. After examining the patient, he found that the plaster was tight and gave a slit on the upper part of the plaster which was inadequate in view of the serious condition of the leg of the patient. Even at that stage, the patient had severe pain and was unable to move left foot fingers, which were clear indication of the fact that the blood vessels had been obstructed and muscles of the left leg of the patient, were in the process of dying and impending gangrene. Such condition which is called as “Compartment Syndrome” (CS) inmedical terms, had thus already been set in. Even at that stage, respondent no.1 did not take the aforesaid ominous symptoms seriously and left the patient still crying in pain.