108. Thereafter, as condition of appellant no.1 continued to deteriorate, he was taken to the clinic of respondent no.1, where he finally removed the plaster completely. After removal of the plaster, it was noticed that there was swelling in the whole of the leg with blackish brown blisters on the skin of the entire leg. Respondent no.1 applied ointment on the blisters and asked appellant no.2 to take patient back home. However, on insistence of appellant no.2, respondent no.1 agreed to re-admit the patient in Respondent no.2’s hospital. Thereafter, a minor surgical procedure of cutting of the muscle to reduce pressure on the leg was performed (In medical terms this is called “Fasciotomy”) on 14th July, 2003 at 5 A.M.
109. It is also appellants’ case that even thereafter, there was no improvement but was deterioration in the condition of the appellant no.1. Then grafting was done by respondent no.3 on 17.7.2003. After grafting, appellant no.1 started complaining of abdomen and back pain coupled with suffocation and breathiness. Thus, on 18.7.2003, appellant no.1 was put on ventilator. Ultimately, appellant no.1 was shifted to Respondent no.4-hospital. However, with great efforts of doctors of respondent no.4- hospital after a period of 14 days, the left leg of appellant no.1 had to be amputated in order to save his life, as the same was already damaged by respondents no.1 to 3.
110. On the other hand, the defence of respondent no.1 is that prompt, adequate and correct treatment as per the clinical conditions was rendered to the appellant no.1 throughout the period he remained under his care regardless of the time and hour of the day. Though the ultimate amputation of the leg of appellant no.1 at the hands of the Doctors of Respondent no.4 –Hospital is unfortunate, yet it would be a mistake to deem that the same has been caused in any manner by the treatment rendered to appellant no.1 by respondent no.1. The line of treatment administered by him was correct and as per the standard text books on the subject.
111. So, it is to be seen, whether it was a simple fracture or not.
112. In this regard, respondent no.1’s defence as per his written statement is;
“It is further denied that the complainant no.1 had suffered from a “Simple Fracture” in his left leg. No fracture in itself can be termed simple and this case, since it was a case of fracture of major long bone of the leg i.e. Tibia, including its growth plate with separation of epiphysis from the metaphysic, was certainly not a case of simple fracture.
On 11th July, 2003 as soon as the answering respondent reached the clinic he examined the complainant no.1 and his X-rays and informed the mother that it was a fracture involving a major long bone (i.e. Tibia) with separation of the epiphysis from the metaphysis. It is denied that the answering respondent said that it was a minor reduction procedure. It is stated here that anybody who has sustained the kind of fracture mentioned above has to be in severe pain and discomfiture and therefore cannot be described by any stretch of imagination as “hale and hearty”. In fact the answering respondent informed the Complainant No.2 that this injury required a closed manipulation of the fractured bone under C-arm image intensifier the facilities for which were available at INSCOL Hospital in Sector 34. They agreed to shift the child to the said hospital for treatment. Since the child had eaten a meal the procedure could not be done immediately and had to be delayed by 3 hours as anesthesia had to be administered and it required a certain period of fasting before the patient can be taken up for general anesthesia. The very fact that the patient was put under general anesthesia itself shows that the injury was not simple and was compounded by virtue of its location.
The reduction of the fracture was performed in the operation theatre under general anesthesia using an Image intensifier which is a machine which gives the X-ray picture on the TV screen while a procedure is being done so that the reduction of the fracture could be assessed properly before final completion of the plaster. It is denied that the answering respondent left the hospital even before the patient had regained consciousness. In fact the Complainant No.1 was out of anesthesia even before he was shifted out of the Operation Theatre and answering respondent accompanied the patient out of the theatre to his room. The answering respondent left the premises of the hospital only when he was certain that the child was comfortable.
The resident doctor in fact communicated to the answering respondent, the satisfactory condition of the child who was comfortable and had accepted oral fluids also. It is denied that answering respondent prescribed any strong painkillers and injections to the complainant no.1 either on telephone or otherwise. The answering respondent only prescribed mild pain killers such as Lyser-D at the time of discharge of the patient, after acquainting himself to the existing condition of the patient and as per the requirement. It is denied that the answering respondent did not visit the hospital by way of callous disregard of the patient. The answering respondent was fully aware of the condition of the patient on account of constant inputs being given to him by the resident doctor, as the answering respondent kept checking about the condition of the patient from the resident doctor. It was only when the answering respondent was satisfied as to the condition of the patient on the basis of the information received from the resident doctor that he recommended that the patient be discharged. The answering respondent was told that the patient was comfortable and that he had had his food and also that he was fully awake.
It is emphasized that there was absolutely nothing abnormal or amiss with the condition of the complainant no.1 at the time of his discharge. Had such conditions as mentioned in this para of the complaint been existing in complainant no.1, the complainant no.2 ought not to have taken home the patient-complainant no.1 even if that would have amounted to going against the advice of the answering respondent. It is again denied that there was any obstruction of blood flow on account of plaster or for any other reason, and therefore there was no need on the part of the answering respondent to prescribe strong painkillers with a view to mask the “Signs and Symptoms of vascular obstruction”. It may be seen from the prescription C1 that the answering respondent had prescribed, at the time of discharge, one painkiller, that too a mild one i.e. Lyser-D.
Further, in reply to the contents of Para no.8 of the complaint it is denied that there were any symptoms of vascular compromise in complainant no.1 at the time of his discharge from the hospital. It may not be lost sight of, that answering respondent had already performed the procedure of setting of the bone and the joining together of the broken ends and applied a plaster from the foot to the middle of the thigh with sufficient amount of cotton padding inside. After having received the said treatment the complainant no.1 was comfortable and had even taken his meals as per the report given to the answering respondent by the resident doctor. It is therefore absolutely wrong to state that answering respondent had not bothered to examine the complainant no.1. In fact the answering respondent was constantly in touch with Hospital staff with regard to the condition of complainant no.1. It is however important to point out that in case the complainant no.1 was experiencing symptoms of “vascular compromise” as alleged, the complainant no.2 ought not have sought a discharge from the hospital. It is always expected of the patient and of his attendants not to seek a discharge from the hospital, if it is felt that the condition of the patient was deteriorating. The very fact that the complainant no.2 on the one hand sought discharge from the hospital and on the other is complaining about the deterioration in the condition of the injured leg of complainant no.1, is a contradiction in itself. Both conditions i.e. of seeking of discharge from the hospital and simultaneous deterioration in the condition of the patient of the patient cannot co-exist. One of the either conditions has to be false. In other words, since the complainant no.2 in fact sought a discharge from the hospital, it must be presumed that the condition of complainant no.1 was indeed satisfactory.The doctor’s recommendation with respect to discharge, even if given, is never mandatory, but in fact only recommendatory and it is only a matter of common sense not to seek discharge from the hospital if the condition of the patient is deteriorating.”
113. The above version of respondent no.1 goes on to show that it was not a case of simple fracture. In fact, the operation was performed after administering General Anesthesia and the same had to be delayed by 3 hours. Therefore, if the injury was not simple, then why such patient was kept for day care only and was discharged at 9.30 p.m. on 11.7.2003, when appellant no.1 was still complaining of the pain.
114. Secondly, it is manifestly clear from respondent no.1’s defence, that appellant no.1 was discharged by him on the basis of information received from his resident doctor. Thus, it stand established that respondent no.1 did not see the condition of the patient personally, before discharging him.
115. Thirdly, how a lay man, that is appellant, could know that patient was experiencing symptoms of “Vascular Compromise”, which is a medical term. Further, whether to discharge or not to discharge the patient, it is for the treating Doctor to decide and not for the patient or the attending persons. Thus, we have no hesitation in holding that respondent no.1 had discharged the patient on 11.7.2003, even without looking to the condition of the patient.
116. Now, coming to the issue whether appellant no.1 had been wrongly complaining about tightness of the plaster and acute pain. In this regard defence of respondent no.1 as per his written statement is;
“The pain that Complainant no.1 might have experienced at this stage is the pain that any patient experiences as a result of the fracture and thereafter its corrective treatment involving the putting of the bone back into its proper position. By this time the effects of the anesthesia had almost completely worn off. The pain was not because of any tight plaster or any obstruction to the blood flow as alleged by complainant no.2. The plaster is always applied with adequate amount of cotton padding underneath to give sufficient room for any swelling which may occur following any fracture injury. It is strongly denied that the pain if at all experienced by complainant no.1 was due to any tight application of the plaster obstructing the flow of blood in the veins and arteries of the leg. As mentioned above the pain that might have been experienced by complainant no.1 was only on account of having suffered the fracture and thereafter the corrective treatment which involved the putting back of the bone into its proper position which in turn involves application of force on the fractured bone. It is also reiterated that by this time the effects of anesthesia had almost completely worn off. The plaster applied byanswering respondent was not tight at all, the same in fact had sufficient amount of cotton padding all around the leg and beneath the plaster in order to provide for any swelling which could occur following the fracture injury. As there was no tightness in the plaster there was no question of any obstruction to the flow of blood in the veins and arteries of the leg. Since this pain that might have been experienced by complainant no.1 was no different than the pain that would be experienced by any other patient in similar circumstances there was no “ominous sign” to be picked up by the answering respondent and others. The complainant is blowing out of proportion the normal experience of pain with a view only to generate sympathy for the complainant no.1.
Further, in reply to the contents of Para No.9 and 10 of the complaint it is stated that the answering respondent received the first phone call on his mobile phone after the application of the plaster from the complainant no.2 on the next day i.e. 12th July, 2003 at about 12 PM stating that though the child was comfortable throughout the night but is now complaining of mild pain in his affected leg. The answering respondent with a view to relieve the patient of the pain complained of, prescribed another pain killer supposedly effective in the clinical condition of the patient. The second pain killer was prescribed at that stage because no other symptom or condition of the patient was brought to the notice of the answering respondent. The answering respondent also cautioned the complainant no.2 as to the importance of keeping him informed with respect to the condition of the patient at all times. The complainant no.2 thereafter called the answering respondent again on his mobile phone at about 7.30 in the evening of 12th July, 2003 wherein she stated that the medicine that was prescribed by the answering respondent earlier in the day had proved effective but now again the complainant no.1 was complaining about pain. The answering respondent responded by saying that in that case he would like to have another look at the patient. The complainant no.2 replied that it was difficult for her to bring the complainant no.1 over to the clinic of the answering respondent she being alone at home at that time. The answering respondent then volunteered to make a house call that very evening to examine the complainant no.1 first hand. It is strongly denied that there was any reluctance at all, to examine the complainant no.1 at his house, on the part of answering respondent. As mentioned in this paraof the complaint itself the answering respondent did visit the house of complainant no.1 within half an hour of receiving the aforesaid call. It is pertinent to mention here that the answering respondent before making this particular house call took care to carry with him the electric plaster cutting saw, plaster shears and a plaster spreader as it was felt that the continuing complaint of discomfiture by the patient might require cutting open of the plaster. When the answering respondent reached the house of complainant no.1 he found him sitting upright in his bed and talking in a relaxed manner to a few people who had come to visit him. On examining the patient, and after closely questioning the patient, the answering respondent felt that though the plaster was sufficiently loose when initially applied, the possibility of some swelling taking place within the plaster cast, could not be ruled out. Therefore, the answering respondent thought that the best course in the circumstances of the condition of the patient would be to slit open the plaster cast right from the base of the toes to the mid thigh through all its layers including the underlying cotton padding. Not only was the plaster cut open through and through as mentioned above, the same was also spread open. The contention therefore of the complainant no.2 that the answering respondent gave a slit only on the upper part of the plaster is wrong and false. The plaster was cut open and spread in a manner which completely revealed the skin of the injured leg of the patient. The answering respondent noticed the absence of any abnormal swelling. The skin was warm to touch and its color was normal. No part of it had any discoloration or blisters. On examining the muscles of the injured leg the answering respondent found absence of any pain and hardening of muscles, on the contrary the muscles had the softness of a normal condition. The answering respondent felt the pulse on the top of the foot and found it running normally. As mentioned above, the answering respondent found, that the patient was able to move the toes of his left foot without any severe pain. The answering respondent found on checking that the patient did not even feel any pain on passive stretching of the toes of the left foot. It is strongly denied that there existed any condition in complainant no.1 at that point of time which even remotely suggested obstruction of blood vessels, or that the muscles of the left leg of the complainant no.1 were in the process of dying or that the gangrene was setting in. It is again denied that Compartment Syndrome was setting in, nor was there any indication of the same being in the process of setting in. It may be noticed from the narration given above that the answering respondent was at pains to undertake through examination of the complainant no.1 and took corrective steps at the initial stage itself on a mere suspicion of the possibility of unusual swelling taking place in the affected leg of the patient.The allegation of the complainant no.2 that the answering respondent did not take the alleged “ominous symptoms” seriously and that he casually advised complainant no.2 to show the patient after two days are absolutely baseless, false and aimed at denigrating the answering respondent. The answering respondent after taking the necessary corrective steps as mentioned above, prescribed a medicine called Phlogenzyme with a view to ameliorate the swelling on the affected leg. Since, the patient was otherwise comfortable the prescription of any other medication was not required. It is therefore denied that at the time the answeringrespondent left that the child was crying in pain. It may be clarified here that it is normal for a patient to experience some swelling on the affected part of the body after he has had received the kind of injury received by the complainant no.1 and after he has had received the treatment involving fracture reducing procedure. The answering respondent left the house of complainant no.2 at about 9.15 PM after spending more than an hour at her house.”
117. Thus, respondent no.1’s defence throughout from the time of the operation till he visited the house of appellant no.1 on 12.7.2003 is, that the plaster was not tight and only normal pain was there.
118. However, we fail to understand that when persistent defence of respondent no.1 from day one is, that the plaster was not tight and it was a case of normal pain, then why he took alongwith him “the Electric Plaster Cutting Saw, Plaster Shears and a Plaster-Spreader” when he visited the house of appellant no.1 on the night of 12.7.2003. It is respondent no.1 own case, that he had the feeling “thatthe continuing complaint of discomfiture by the patientmight require cutting open of the plaster (Emphasis Supplied).
119. Therefore, above facts clearly goes on to establish that respondent no.1 was fully aware of the continuing complaint of discomfiture by the patient on 12.7.2003 itself, when he visited patient’s house and that is why he had taken all the necessary equipments with him. This plea of respondent no.1 that it was never brought to his notice, that appellant no.1 was suffering from acute pain and the plaster was tight, therefore falls to the ground. Hence, it conclusively prove the case of appellant no.1, that he was having acute pain due to the tightness of the plaster only and respondent no.1 was well aware of the same but still respondent no.1 ignored the same.
120. Respondent no.1’s further defence is;
“That on 13th July, 2003, appellant no.2 called him only at 1.30 p.m. stating that though the appellant no.1 had a restful night but he (appellant no.1) now seems to be experiencing heightened pain. Accordingly he responded by saying that in the said case he must be brought to his clinic immediately. Thereafter, patient was brought the patient to his clinic at 2.15 p.m.”
“Though the answering respondent had cut open the plaster cast right through it the previous evening, he took it completely off the leg of the patient with a view to make a thorough and all round examination of the affected leg. The answering respondent found that there was somewhat abnormal swelling in the calf region only and not in theentire leg as is being alleged. The answering respondent also noticed a few blisters on the front side of the upper part of the leg only but not on the entire leg as is being alleged. The answering respondent elevated the leg on a BB Splint and cleaned the skin around the blisters with Betadine solution and then applied Betadine ointment over the blisters as an antiseptic measure. It is strongly denied that the answering respondent had asked the complainant no.2 to take the child back home or that he advised her to bring him after seven days. On the contrary the answering respondent categorically told the complainant no.2 that the complainant no.1 had to be admitted so that he is constantly monitored by answering respondent himself. The complainant no.2 initially responded by showing reluctance to have her child admitted in the hospital as according to her, it was difficult for her to commute from Mani Majra to Sector 34 where the hospital is located. The answering respondent explained to the complainant no.2 that the abnormal swelling and blisters noticed on the front of the upper part of the patients leg could be indicative of a more serious problem which the answering respondent suspected in his mind to be the possible onset of a Compartment Syndrome and hence the need for admission and close monitoring. It was only on the answering respondent’s insistence that she agreed to admit complainant no.1 in Respondent No.2 Hospital. A reference may be made here to C3 where the answering respondent has clearly and unreservedly written that the complainant no.1 be admitted in the hospital. The statement in this para to the effect that annexure C3, the prescription written by answering respondent was prepared at a later stage and that it was manipulated after the stated gap is absolutely false and is nothing but a white lie being told only to heighten the perception of negligence on the part of the answering respondent. The truth however is that the answering respondent had penned down this prescription in the presence of the complainant no.2 at about 3 p.m. on 13th July, 2003 and had handed it over to the complainant no.2 in order to facilitate the admission of the complainant no.1 in the Hospital which could have been made only on the presentation of this prescription. The answering respondent even arranged for the ambulance from INSCOL Hospital with a view to ensure safe and comfortable transportation of the complainant no.1, as the leg of the patient was already on a BB splint. The answering respondent thereafter followed the ambulance to the Hospital respondent no.2, because he was required to make an admission note in the admission file of the respondent no.2 Hospital and issue necessary instructions to ensure proper care of the patient while he was admitted there.
The answering respondent thereafter again visited the complainant no.1 in the Hospital at about 9 PM the same evening to check the condition of the complainant no.1 again and to monitor that the treatment suggested by him earlier in the evening was being closely followed. As the answering respondent was already suspecting the onset of Compartment Syndrome he specifically examined the patient and his affected leg for further signs of onset of Compartment Syndrome. But found absence of any alarming degree of swelling or heightened pain in the affected leg of the patient. The temperature of the patient was normal and generally he did not seem to be in particular discomfort. The answering respondent left the hospital after examining the patient as mentioned above at about 9.30 PM after giving necessary instructions to the hospital staff. At about 3 AM in the wee hours of the morning of 14th July, 2003 the answering respondent was woken up by a call from the resident doctor of the Respondent No.2 Hospital who said that he was summoned by complainant no.1 at about 2.45 AM with complaint of severe pain in the affected leg of the complainant no.1. He further said that on examination he found that there were diminished sensation in the toes of the left foot and the pulses were feeble on palpation. The answering respondent replied that he would be in the hospital in ten minutes. The answering respondent replied that he would be in the hospital in ten minutes. The answering respondent reached the hospital at about 3.10 AM and found that the complainant no.1 was in severe pain and on examination the sensations were absent and the pulses in the foot were palpable though feeble. On seeing the aforesaid condition of the complainant no.1, the answering respondent told the complainant no.2 that the condition of the patient had compounded and it would require taking certain measures involving surgical intervention (Fasciotomy) in order to relieve the excessive pressure which had built up in the muscle compartments of the leg. It is admitted that thefasciotomy was performed at about 5 AM on July 14th 2003.”
121. So, from the above defence of respondent no.1, it is clearly established that “Compartment Syndrome” has set in, which as per medical literature means;
“Compartment Syndrome is a condition characterized by raised pressure within a closed space with a potential to cause irreversible damage to the contents of the closed space. Compartment syndrome of the foot has been indirectly alluded to since the description of gangrene is a complication of Lisfrane fracture-dislocations and increasing reports of this condition are now appearing in the literature.”
The prerequisites for the development of a compartment syndrome include a cause of raised pressure within a continued tissue space. Distortions in the relation between volume and pressure interfere with circulation to the compartment in question, leading to the development of an acute compartment syndrome. Any condition that increases the content or reduces the volume of a compartment could be related to the development of an acute compartment syndrome. Excess tissue pressure secondary to increased volume of a compartment has been shown to occur in various conditions, including hemorrhage, fractures.
A major cause of medicolegal problems for surgeons who treat fractures is failure to diagnose and treat a vascular injury or compartment syndrome appropriately. The only effective way to decompress an acute compartment syndrome is by surgical fasciotomy. It cannot be overemphasized how important it is to understand the basic pathophysiology so that the surgeon can recognize the risk involved. (See: SKELETAL TRAUMA SECOND EDITION, VOLUME ONE by Bruce D Browner and others). 122. Further defence of respondent no.1 is;
“it is denied the complainant no.1 experienced any abdominal or back pain or that he suffered from suffocation or breathlessness on the 17th July, 2003. The grafting was done on the affected leg of the complainant no.1 by respondent no.3 on the 16th July, 2003 and he did not suffer from any adverse effects from the same on the said day. It is emphasized here that the said grafting has absolutely nothing to do with abdominal and back pain that is to say the grafting could not possibly have triggered either of the pains referred to here nor could it have caused suffocation or breathlessness. It is reiterated here that on 17th July, 2003, complainant no.1 was not suffering from any of the complaints mentioned in this para of the complaint.”
“It is clarified here that the abdominal pain and breathlessness which are referred to by the complainant in para no.12 saying that the same occurred on the 17th July, 2003, in fact had occurred on the morning of 18th July, 2003 and the answering respondent out of his concern for the complainant no.1 called in Dr. Jayant Banerji to look at the child and redress the said complaints. He thoroughly examined the complainant no.1 and as per the clinical condition of the patient ordered some investigations.”
“At about 12.45 PM the answering respondent received a call on his mobile phone from Dr. Banerji who expressed his concern about the general condition of the child and said that he would like to discuss the results of the investigations ordered by him earlier in the day, with the answering respondent. Dr. Banerji had also similarly called respondent no.3 as well. OP No.1 and OP No.3 thus in fact came to the hospital at about 1 PM not merely to change and check the dressing of the complainant no.1 but to discuss the condition of the complainant no.1 with Dr. Banerji in the light of the findings of his investigations. On discussing the matter threadbare amongst themselves i.e. the answering respondent, respondent no.3 and Dr. Jayant Banerji, it was decided that in view of the shallow breathing of the complainant no.1 and the findings of the investigations ordered by Dr. Banerji earlier showing falling Oxygen levels in the blood stream of complainant no.1, it would be appropriate to shift the complainant no.1 to Intensive Care Unit (ICU) of the Hospital. It was so decided by the answering respondent, respondent no.3 and Dr. Banerji because the findings of the investigations undertaken at the instance of Dr. Banerji had revealed that the complainant no.1 had developed a complication called “Adult Respiratory Distress syndrome” 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. The answering respondent, respondent no.3 and Dr. Banerji there upon called complainant no.2 and her relatives/friends present at that time to the Doctors Room and explained at to them at length the complication which had suddenly developed in the complainant no.1 and the consequent remedial actions which needed to be taken immediately. The complainant no.2 and her relatives/ friends were further told that the condition of the complainant no.1 warranted that he be shifted to the ICU and put on a Ventilator.”
“That the complainant no.1 needed to be kept on a ventilator was broken to her only after the investigations carried out in the hospital revealed falling levels of oxygen in the blood stream of the patient on 18th July, 2003. She was thereafter given the option of either keeping the child in the respondent no.2 hospital or that of shifting him to any Hospital/Institute of her choice. There is no question of mishandling of the case by either respondent no.1 or by other fellow doctors as the condition of the child was constantly monitored and the requisite treatment was given at every stage of the case of complainant no.1.”
“It was past midnight when the answering respondent, respondent no.3, Dr. Jaynat Banejrji and Dr. Rashmi Saluja left the premises of GMCH, Sec-32, after ensuring that the complainant no.1 was well ensconced on his new ventilator at the GMCH.
“It was not the case of a simple fracture and none is treated as such by the answering respondent. This particular fracture was a case of fracture of a major long bone of the leg i.e. tibia including its growth plate with separation of epiphysis from the metaphysis, (Refer to the diagram given in Para No.1) it was a complex injury and was treated as one right from the beginning. The amputation of the leg of the complainant no.1 cannot be attributed at all to the treatment given to him while he was under the care of the respondent no.2 Hospital firstly because right from 11th July, 2003 i.e. the day the complainant no.1 arrived at the clinic of the answering respondent, he has rendered him treatment recommended by the latest text books on the subject with the help of most advanced medical equipment available in town and secondly at no stage the answering respondent shirked from examining the patient first hand irrespective of the hour of the day. It is also important to keep in view that no part of the treatment has caused or triggered the onset of compartment syndrome and or muscle necrosis. The patient never was in septicaemia and the affected leg never became gangrenous. Thirdly, because the complainant no.1 was admitted in respondent no.4 Hospital on 18th July, 2003 and his leg was amputated on the 14th day i.e. 1st August, 2003. If conditions at all warranted amputation of the leg of the patient then the same must have accrued in the said Hospital in the said period that the complainant no.1 remained admitted there. It has been mentioned in Para no.19 above that at the time the complainant no.1 left the respondent no.2 Hospital, not only there was no situation requiring amputation in fact all vital parameters showed that the condition of his leg was improving. It is therefore denied that the amputation has been caused by any callousness, carelessness or negligence on the part of the answering respondent.”
123. So, it is manifestly clear from the record that on 13th July, 2003 itself, respondent no.1 was suspecting the onset of Compartment Syndrome but he ignored it. Later on, “Fasciotomy” was performed on July 14, 2003 at about 5 A.M. for that purpose, respondent no.1 reached the Hospital at 3 A.M., which itself shows about the gravity of situation. Earlier, respondent no.1 had ignored the tightness of the plaster and severe pain being suffered by the patient in a careless manner. So, medical negligence on the part of respondent no.1 is clearly established. Thus, present case squarely falls within the parameter of Medical Negligence as well as it is a case of “res ipsa loquitor”, that is, the facts speaks for itself.
124. It isrespondent no.1’s own case, that after Fasciotomy, grafting was to be done. Later on, the patient developed Adult Respiratory Distress Syndrome, It is also respondent no.1’s case that Dr.Banerji had called him on his mobile phone and had expressed his concern about the condition of the patient and after discussion, it was decided to put the patient on ventilator. So, these facts goes on to show about the serious condition of the patient on 18th July, 2003.
[125. Further, there is material omission on the part of respondent no.1, in not placing on record the prescription/case sheet regarding treatment given by him to the patient on 12.7.2003.
126. Even otherwise, discharge record of Respondent No.2-Hospital supports the patient’s version which read as under;
“ DISCHARGE RECORD
Department : Orthopaedics
Consultant : Dr. Sanjay Saluja
Patient Name : Abhishek Ahluwalia
Reg. No. : 16696 Age: 15 years,
Date of Admission: 11.07.2003
Date of Discharge: 18.07.2003
Final Diagnosis : Fracture upper end tibia
Left leg with displaced
epiphysis of tibial
15-year old male k/e/o/ neurocysticercosis who was previously admitted with fracture upper end tibia left leg with displaced epiphysis of tibial tuberosity for which closed reduction was done under general anesthesia using image intensifier and above knee plaster cast was applied. He presented with complaints of severe pain, numbness of toes and inability to move the toes. On 12-07-2003 on complaint of pain and numbness the plaster was cut open and loosened by Dr. Saluja at the residence of the patient. On 13-07-2003 as pain persisted the plaster was completely removed and limb kept elevated. There were blisters on the anterior aspect of the upper leg whch were cleaned and dressed with Betadine ointment. The peripheral circulation was normal, the dorsalis pedis and posterior tibial pulsations were well palpable. Patient was admitted for observation and leg elevated on a B.B. splint. Medicines were prescribed to reduce swelling and pain. Inj. Voveran, Inj. Tremazac, Inj. Phenargan were given as and when required. The circulation and pulses were checked on hourly basis. At 3.15 am on 14-07-2003 the doctor on duty observed that the circulation was getting sluggish and he informed Dr.Saluja who came and saw the patient. In view of decreased peripheral circulation in the limb it was decided to do an emergency fasciotomy to relieve the pressure on the leg compartments. On 14-07-2003 at 5.00 am under spinal anesthesiafasciiotomy was done and the peripheral circulation improved. Patient was started on inj. Monocef. Inj. Amikacin, inj. Metrogyl and IV fluids. Inj. Fraxiparine ws stared and IV Plasmex40 given slowly over 8-10 hours. In view of myoglobinuria Sodabicarb was given. By evening the posterior tibial pulsations were palpable. On 15-7-2003 the patient was seen by Dr.Kuldeep Singh on request of relatives and he agreed with line of treatment. On 16-07-2003 the wound was inspected and found healthy for split skin grafting which was done by Dr.caplash under GA. On 18-07-2003 the patient was seen by Dr. J.P. Singhvi, Nerurologist for his epilepsy and complaints of back pain. On examination found no neurological deficit and continued previous treatment. The patient compained of abdominal pain and shallow respiration for which Dr. Jayant Banerjee was consulted. The BP was 100/80mmHg. and pulse rate was 90/mm. Bowel sounds were sluggist to absent. Patient was kept NPO and on IV fluids and investigations sent. The report were suggestive of ARDS secondary to Rhabdomyolysis. The patient was shifted to ICU and it was decided to electively ventilate him. He was catheterized and a CVP line and arterial line were put. The patient was ventilated and later in the evening shifted to GHCH Sec.32 Chandigarh for further management.”
127. Further, it is an admitted fact that ultimately, appellant no.1 was shifted by respondent no.1 and other doctors, in a panic condition past midnight to Respondent No.4-Hospital.
128. The fact that there was development of gangrene, is not disputed by respondent no.1. Therefore, the onus of proof would shift upon to the Doctor (Respondent No.1) to explain as to how and when gangrene had developed. However, respondent no.1 failed to give any sound and convincing reason. Instead, he shifted the entire blame for amputation of leg on the Doctors of Respondent No.4-Hospital.
129. In the present case, principles of “res ipsa loquitur” are fully attracted. In this regard, with advantage we quote the following observations made by a Three Members Bench of Hon'ble Supreme Court recently in Ashish Kumar Mazumdar Vs. Aishi Ram Batra Charitable Hospital Trust and others, II (2014) CPJ 5 (SC);
“8. The maxim res ipsa loquitur in its classic has stated by Erle C.J.
(1)”... where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”[Scott v. London & St. Katherine Docks, (1865) 3H & C 596, 601].
The maxim applies to a case in which certain facts proved by the plaintiff, by itself, would call for an explanation from the defendant without the plaintiff having to allege and prove any specific act or omission of the defendant.
9. In Shyam Sunder and Others vs. The State of Rajasthan, 1974(1)SCC690, it has been explained that the principal function of the maxim is to prevent injustice which would result if the plaintiff was invariably required to prove the precise cause of the accident when the relevant facts are unknown to him but are within the knowledge of the defendant. It was also explained that the doctrine would apply to a situation when the mere happening of the accident is more consistent with the negligence of the defendant than with other causes.”
130. This Commission also in Masih Hospital and others Vs. Kuldeep and others (R.P. No.685 of 2013, decided on 1.4.2013) had observed;
“The facts speak for themselves and there is no need to call for an expert evidence. Res Ipsa Loquitor is one form of circumstantial evidence that permits a reasonable person to surmise that the most probable cause of an accident was the OPs negligence. Negligence is a breach of duty to take care resulting in damage to one person or property. However, the Black Law Dictionary defines negligence as under:- Negligence per se Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.”
131. Similarly, in Prem Prakash Rajagaria Vs. Nagarmal Modi Sewa Sadan and others (Consumer Case No.170 of 1999, decided on 6.2.2013)this Commission observed;
“In Post Graduate Institute of Medical Education and Research, Chandigarh, Vs. Jaspal Singh & Ors. (2009) 7 SCC 330, it was laid down that the failure to perform the duties with reasonable competence amounts to negligence. In Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors., (2009) 6 SCC 1, it was held that once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital and the attending doctor to satisfy the court that there was no lack of care or diligence. Same view was taken in Smt. Savita Garg Vs. Director National Heart Institute, AIR 2004 SC 5088. InVidya Devi (Since deceased) through LR’s & Ors. Vs. Dr.R. Mahendroo, II (2008) CPJ 232 (NC), it was held that overdose of a drug and incorrect diagnosis of the patient by the doctor tantamount to medical negligence. In this case, the Doctrine of Res Ipsa Loquitur squarely applies. See Rusell Vs. L.&S. W.Ry., (1908) 24 TLR 548, 551. See also SarojChandhoke Vs. Ganga Ram Hospital & Anr.III (2007) CPJ 189 (NC).”
132. Apex Court in Nizam Institute of Medical Sciences (supra) held;
“In a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.”
133. Further,Supreme Court inSmt. Savita Garg Vs. The Director, National Heart Institute, (Civil Appeal No.4024 of 2003 dt. 12th October, 2004) observed;
“Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose that what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. If a particular doctor is not impleaded, it will not absolve the hospital of their responsibilities.”
134. This Commission in Dr. Vinod Kumar Gupta Vs. Ruplal Yadav and another (R.P. No.4823 of 2012, decided on 15.1.2013),observed;
“The Treaties on Medical Negligence by Michael Jone’s book gave illustrations where gangrene developed in Claimant’s arm following an intra-muscular injection, relied upon in Cavan Vs. Wilcox (1973) 44 DLR (3d) 42. This has been found to be a case of medical negligence and held to be applied as “RES IPSO LOQUITOR”. This has been approved by theHon’ble Supreme Court vide para 46 of the judgment reported in III (2010) CPJ 1 (SC) in V.Krishna Rao Vs. Nikhil Superior Spl. Hosptial & Others”. It is well settled that it is the complainant who is to carry the ball in proving his case. However, when he proves on record some prima facie evidence, the onus shifts on to the OP. The fact that there was development of gangrene was never denied. The expert Dr.N.K.Jha is a Doctor. A thorough study of his statement clearly goes to show that he tried to save the OP. It is apparent that a doctor will refrain from criticising the other doctor when both of them reside in the same city. Development of gangrene is one of the causes. No other cause was pointed out or proved. Onus of proof shifts on to the Doctor to explain as to why did the gangrene develop. The OP has failed to rebut this evidence and facts speak for themselves.”
135. Learned counsel for respondent no.1 has placed much reliance on the statement of Dr. Kuldeep Singh (complainants’ witness) who was summoned for a second opinion. The State Commission with reference to the statement of this witness held;
“We have no expert opinion from the side of the complainants regarding the Dynacast Plaster being not suitable or applied in a manner, which caused further damage to the fractured leg. It was at the insistence of the complainant No.2 that Dr. Kuldeep Singh was summoned for a second opinion and he examined the patient.”
State Commission further observed;
“The statement of Dr. Kuldeep Singh is thus quite clear and categorical. It was the complainant No.2 who had decided to have the second opinion of Dr. Kuldeep Singh and the complainants cannot now turn round and question the very opinion of Dr. Kuldeep Singh when it went wrong against them. The fact that OP No.2-Inscol Hospital is owned by the daughter and son-in-law of Dr. Kuldeep Singh cannot be said to be in any manner influential or detrimental to the interest of the complainants. The complainants cannot now accuse Dr. Kuldeep Singh and charge him even as contributory medical negligence by shielding Dr. Sanjay Saluja and OP No.2-Inscol Hospital.”
136. Hon'ble Apex Court in Indian Medical Association vs. V.P. Santha (supra) observed;
“It is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery.”
137. In B. Krishna Rao Vs. Nikhil Super Speciality Hospital, III (2010) CPJ 1(SC) the Hon'ble Apex Court held;
“It is not necessary to have opinion of the expert in each and every case of medical negligence.”
138. In the instant case, appellants in view of the admission made by respondent no.1 as well as on the basis of documentary evidence placed on record, had discharged the initial burden of making a case of negligence and remiss on the part of Respondent No.1. Therefore, we are of the considered view that under such circumstances, there was no requirement of any expert opinion.
139. Though, respondent no.1 is a qualified doctor but he has not used his best professional judgment and due care in the treatment of appellant no.1 right from the very beginning. The patient had been complaining about severe pain and tightness of the plaster from the day one. However, respondent no.1 ignored the voice raised by the patient, which ultimately resulted in setting of “Compartment Syndrome”. Later on, Fasciotomy had to be performed and subsequently grafting was done. All these medical exercises had been done by respondent no.1 within a week, which clearly shows about the serious condition of the patient. Thereafter, immediately gangrene had set in which ultimately led to the amputation of leg. Had amputation of leg not been done by the doctors of Respondent No.4-Hospital,then the life of appellant no.1 would have been in danger. Under these circumstances, it is respondent no.1 alone who is to be blamed for such unfortunate incident. Accordingly, we hold that medical negligence on the part of respondent no.1 is writ large in this case.
140. Once it is held that there has been medical negligence on the part of respondent no.1, then this Commission while granting adequate compensation has to bear in mind all the relevant facts and circumstances.
141. Recently, Hon'ble Supreme Court in Balram Prasad Vs. Kunal Saha and others [IV (2013) CPJ1 (SC)] has referred its earlier decisions regarding grant of compensation in medical negligence cases as mentioned hereunder;
“81. In Govind Yadav Vs. New India Insurance Ltd.(supra), this Court at para 15 observed as under which got re-iterated at paragraph 13 of Ibrahim Vs. Raju & Ors. (supra) :-
“15. In Reshma Kumari v. Madan Mohan this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below: (SCC pp. 431-32 & 440-41, paras 26- 27 & 46-47)
‘26. The compensation which is required be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
27. The question as to the methodology to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guesswork may be inevitable. That may be so.’
* * *
46. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact whiledetermining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
47. One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor.”
“83. Besides enhancement of compensation, the claimant has sought for additional compensation of about Rs.20 crores in addition to his initial claim made in 2011 to include the economic loss that he had suffered due to loss of his employment, home foreclosure and bankruptcy in U.S.A which would have never happened but for the wrongful death of his wife. The claimant has placed reliance on the fundamental principle to be followed by the Tribunals, District Consumer Forum, State Consumer Forum, and the National Commission and the courts for awarding ‘just compensation’. In support of this contention, he has also strongly placed reliance upon the observations made at para 170 in Malay Kumar Ganguly’s case referred to supra hwerein this court has made obsrvations as thus;
“170. Indisputably, grant of compensation involving an is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone v. Rawyards Coal Co.)
85. Further, it is an undisputed fact that the victim was a graduate in psychology from a highly prestigious Ivy League school in New York. She had a brilliant future ahead of her. However, the National Commission has calculated the entire compensation and prospective loss of income solely based on a pay receipt showing a paltry income of only $30,000 per year which she was earning as a graduate student. Therefore, the National Commission has committed grave error in taking that figure to determine compensation under the head of loss of dependency and the same is contrary to the observations made by this Court in the case of Arvind Kumar Mishra Vs. New India Assurance which reads as under:
“14. On completion of Bachelor of Engineering Mechanical) from the prestigious institute like BIT, it can be reasonably assumed that he would have got a good job. The appellant has stated in his evidence that in the campus interview he was selected by Tata as well as Reliance Industries and was offered pay package of Rs.3,50,000 per annum. Even if that is not accepted for want of any evidence in support thereof, there would not have been any difficulty for him in getting some decent job in the private sector. Had he decided to join government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rs.60,000 per annum. Wherever he joined, he had a fair chance of some promotion and remote chance of some high position. But uncertainties of life cannot be ignored taking relevant factors into consideration. In our opinion, it is fair and reasonable to assess his future earnings at Rs. 60,000 per annum taking the salary and allowances payable to an Assistant Engineer in public employment as the basis.”
“90. He has also placed reliance upon the Nizam Institute of Medical Sciences’s case referred to (supra) in support of his submission that if a case is made out, then the Court must not be chary of awarding adequate compensation. The relevant paragraph reads as under;
88. We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The “adequate compensation” that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned.”
91. He has further rightly contended that with respect to the fundamental principle for awarding just and reasonable compensation, this Court in Malay KumarGanguly’s case (supra) has categorically stated while remanding this case back to the National Commission that the principle for just and reasonable compensation is based on ‘restitutio in integrum’ that is, the claimant must receive sum of money which would put him in thesame position as he would have been if he had not sustained the wrong.
92. Further, he has placed reliance upon the judgement of this Court in the case of Ningamma’s case (supra) in support of the proposition of law that the Court is duty-bound and entitled to award “just compensation” irrespective of the fact whether any plea in that behalf was raised by the claimant or not. The relevant paragraph reads as under;
“34. Undoubtedly, Section 166 of the MVA deals with “just compensation” and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting “just compensation” in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty-bound and entitled to award “just compensation” irrespective of the fact whether any plea in that behalf was raised by the claimant or not.”
142. The Apex Court, thus held;
“A careful reading of the above cases shows that 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. Therefore, submission made in this regard by the claimant is well founded and based on sound logic and is reasonable as the National Commission or 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.”
143. Appellants in Para No.47 of their have claimed total compensation to tune of Rs.97,88,192/- alongwith upto date interest and litigation expenses under the following headings;
(a) Present burden of medical expenses,
(b Perspective burden of expenses for providing
(c) Loss of future earnings of the child,
(d) Loss of enjoyment of future married life of the
(e) Pains/sufferings, loss of amenities, enjoyment
life and shortening of life expectancy,
(f) Humiliation and condemnation of the child on
account of being disabled person,
(g) Damage/compensation to parents on account of
trauma suffered by them,
(h) Loss of earning of father who had to terminate
144. Respondent no.1, in response to Para No.47 of the complaint, has averred;
“47. In reply to the contents of Para 47 of the complaint it is stated that there is no question of payment of any compensation as no negligence has either been committed by the answering respondent nor has been made out by the complainants against him. The answering respondent has done his very best to render an honest, efficient and correct service to the complainants and if in spite of that a misfortune has befallen them the same is only for the reasons not ascribable to the line of treatment adopted by him but to factors beyond human and medical control.”
145. Thus, there is no denial at all on behalf of respondent no.1 with regard to the amount of compensation claimed by the appellants.
146. Be that as it may, appellant no.1 remained admitted in the Inscol Hospital under the supervision of respondent no.1. In that Hospital, towards medical expenses, the appellants spent a sum of Rs.3,98,192/- and there is no dispute about it. Therefore, we grant a sum of Rs.4,00,000/- (Rupees Four Lac only) [rounded off] towards the medical expenses as claimed.
147. Further, appellant no.1 has claimed a sum of Rs.30,00,000/- (Rupees Thirty lacs only) as compensation on the ground that throughout his life, he has to be provided for artificial leg and same would be replaced after certain period.
148. It is an admitted fact that appellant no.1 has been living with an amputated leg since 2003. Thus, his life has been crippled and he will have to live in such condition throughout his life. Therefore, sum of Rs.25,00,000/- (Rupees Twenty Five lac only) would be just and sufficient compensation, for making provision of artificial leg from time to time for the future.
149. Appellant no.1 has also claimed a sum of Rs.30,50,000/- (Rupees Thirty Lac Fifty Thousand only) towards loss of future earning. It is an admitted fact, that due to the amputation of leg, earning capacity of appellant no.1 has been substantially reduced. Hence, we award a sum of Rs.25,00,000/- (Rupees Twenty Five lac only) towards the loss of earning for the present as well as for future.
150. Due to amputation of the leg, naturally there would be loss of enjoyment in the married life. Further, admittedly appellant no.1 had suffered pain and suffering and he would have to live his entire life as a disabled person. Under these circumstances, we allow a sum of Rs.3,00,000/- (Rupees Three lac only) for these sufferings.
151. Appellant no.1 has also claimed a sum of Rs.36,000/- per month on account of permanent attendant/driver for a minimum of 50 years. It is an admitted fact that appellant no.1 have to remain dependent on someone else throughout his life and as such would avail the services of a permanent attendant/driver. Therefore, keeping in view the nature of disability and age of appellant no.1, we award a total sum of Rs.13,00,000/- (Rupees Thirteen lac only) for the aforesaid purpose.
152. The amount claimed by appellant no.3 regarding loss of salary suffered by him and expenses incurred for travelling by air cannot be allowed. Therefore, claim of appellant no.3 is rejected.
153. In view of our above discussion, we grant a total compensation of Rs.70,000,00/- (Rupees Seventy lac only) to appellant no.1.
154. Accordingly, the impugned order passed by the State Commission is set aside. The present appeal stand partly allowed against respondent no.1. Since, no negligence on the part of respondents no.2 to 4 has been established, as such the appeal against them, stand dismissed.
155. Therefore, we direct respondent no.1 to pay the aforesaid amount to appellant no.1 by way of demand draft in his name, within three months from today. In case, respondent no.1 fails to pay the aforesaid amount within the prescribed period, then it shall be liable to pay interest @ 9% p.a., till realization.
156. List for compliance on 10th October, 2014.
PRESIDING MEMBER ………………………………………
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI