Randhir Vs. Inscol Tertiary Care Hospital and Another - Court Judgment

K.K. Srivastava, President:

1. Feeling aggrieved against the judgment and order dated 2.6.2004, the complainant Shri Randhir Garg, an Architect by profession and son of Shri D.C. Dhaula (Garg), Advocate has filed this appeal. The Complaint Case No. 776 of 1999 was filed in the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) against Director, INSCOL Tertiary Care Hospital (for short hereinafter to be referred as Inscol Hospital) and Dr. Kuldip Singh claiming compensation for medical negligence in the treatment of the complainant.

2. The complaint case mainly raised disputes regarding the operating surgeon using rusted nails at the time of surgery, which resulted in complications. The other grievance was that without carrying out sensitivity test, Betadine was applied to the complainant who was allergic to the said medicine. The operating surgeon was not qualified to perform the surgery, which was carried out negligently resulting in non-union of bone and it necessitated second surgery. The other grievance was that the complainant was put on steroids without taking care of its consequences.

3. The complaint case was contested by the respondents who denied the allegations of medical negligence while performing surgery on the appellant. It was stated in the joint written statement by the respondents that the appellant was brought at the Inscol Hospital with a fracture in left arm and multiple bleeding injuries on 3.3.1999 and it was alleged that the appellant was involved in a car accident. According to the x-ray taken and various tests conducted, the respondents according to the settled medical opinion found it to be a case of commuted fracture of upper third of the left humerus and other multiple injuries in the form of abrasions and cuts. A surgery was necessitated to stabilize the fracture and it was diagnosed and explained to the patient i.e., the complainant who was fully conscious. The patients and relatives of the appellant were also duly informed about the nature of operation and its consequences. The appellant as well as his parents agreed for the operation for bone reduction and internal fixation with any suitable device. It was alleged that in order to fix the fragments, various devices like nails, plates, screws etc. were required to be ready on operation table before the surgery was actually conducted. The most suitable implant is used during the operation and taking into consideration the nature of fragments and damage to the bone of the complainant. A rush pin/nail of proper size was used successfully and the fragments were approximated and immobilized adequately and the surgery yielded very good results.

4. As regards the rusted nails, as alleged by the complainants, the respondents contended that the complainant appeared to have mixed up the name of nail i.e., rush nail with rusted nail. Apart from this, it was contended that the behaviour of the bone as far as union of the fracture is concerned is known after some time of surgery. The healing and union of bone is a natural process and the same was not good in the case of the complainant, which is against the normal expectations. Regarding the physique of the complainant, the respondents contended that though the complainant was a young man but he was a person of weak constitution. The delayed unions and non-union of bones are not unknown phenomenon though uncommon. It was mentioned that in such cases, another surgical procedure of grafting and re-fixation of fragments by plating is resorted to. The complainant was explained and advised the second surgery with bone grafting and this was the standard procedure where bones do not behave normally. The complainant, it was mentioned, did not report to the respondent-Inscol Hospital and instead went to PGIMER, Chandigarh for futher treatment.

5. The respondents further contended in the written statement that the respondent No. 2 Dr. Kuldip Singh sought opinion of Head of Department, Orthopaedics, PGIMER, Chandigarh regarding the treatment given to the complainant and according to the opinion of the said doctor, the treatment given to the complainant was adequate by all standards. It was mentioned that utmost care was taken in diagnoses by the operating surgeon Dr. Kuldip Singh who was assisted by Dr. Salil Saha and bone fregments were fixed with most suitable device. It was denied that any damage was done to the complainant on account of lack of facilities at Inscol Hospital or on account of lack of expertise on part of operating surgeon. The respondent-Inscol Hospital, it has been alleged, is well equipped with latest gadgets and is managed by a team of experiences and highly qualified professionals. The complainant was at liberty to choose a doctor of his choice for his treatment and he came on his own choice to the respondent-Inscol Hospital.

6. The complainant examined Dr. Vijay Goni, Assistant Professor, Orthopaedics Department, PGIMER, Chandigarh as CW-1 and Dr. Parveen Chawla of Chawla Nursing Home, Model Town, Hisar as C.W.-2. The complainant also filed his own affidavit. O.Ps. examined Dr. Ramesh Kumar Sen (R.W. 1), Associate Professor, Orthopaedic Department, PGIMER, Chandigarh. At the request of the complainant, Dr. Kuldip Singh and Sh. Daljit Singh Gujral were subjected to cross-examination.

7. The District Forum held that the O.Ps. had chosen to implant rush nail instead of interlocking nail, which was one of the approved methods and thus no deficiency or negligence on the part of treating surgeon was committed. Relying on the judgment of the Honble National Consumer Disputes Redressal Commission, New Delhi (for short hereinafter to be referred as National Commission) in the case of Charan Singh v. Healing Touch Hospital and Ors., III (2003) CPJ 62 (NC), wherein it was held that it is settled law that when two choices are available, exercise of one, which is the best in the judgment of the doctor and nothing else is available to contradict this, the doctor in such circumstances cannot be held to be negligent, the District Forum returned the finding that the respondents were not either medically negligent or careless in treating the complainant. As a result of this finding, the complaint was dismissed. The parties were, however, left to bear their costs.

8. Notice of appeal were issued to the respondents who put in appearance through Mr. A.B.S. Wasu, Advocate. The record of the complaint case summoned. We have heard Mr. D.C. Dhaula, Advocate who is the father of the appellant as well as the practising Advocate and the learned Counsel for the respondents Mr. A.B.S. Wasu, Advocate. We have carefully perused the impugned judgment and order and the record of the complaint case, which was summoned by us at the time of hearing of the appeal.

9. The facts of the case will reveal that the complainant after getting his treatment at the respondent-Inscol Hospital where he was operated upon by the Orthopaedics Surgeon - respondent No. 2 on 3.6.1999, he did not feel relieved of the problem and was taken to PGIMER where he was operated upon on 22.7.1999 by a team of Orthopaedic Surgeons headed by Dr. O.N. Nagi. Dr. Vijay Goni (C.W. 1) examined the complainant Shri Randhir Garg at PGIMER for the first time on 6.8.1999 and subsequently he attended the complainant for follow up treatment till 29.5.2000. It was during this period that he was told by the complainant Shri Randhir Garg that earlier before coming to PGIMER, he had been operated upon on 4.3.1999 at the respondent-Inscol Hospital. The record of the case showed that the complainant was admitted in PGIMER on account of non union of fracture shaft of humerus left side for which rush nail was implanted in the fractured bone. According to his statement, the operation was done by Dr. Ramesh Kumar Sen and other doctors. During the post operative recovery period, Dr. Vijay Goni attended the complainant but he was not present at the time of the operation of the complainant done in the PGI. As per the record of PGI, Dr. Vijay Goni stated that earlier nail was removed and re-surgery was done with plates and screws and bone grafting was also done. The surgery in the PGI was successful and the patient had regained near normal movement of the joints with complete union of fractured bones when he was the patient for the last time on 29.5.2000. Dr. Ramesh Kumar Sen, Associate Professor in the Department of Orthopaedic Department, PGI, Chandigarh had performed the operation at PGIMER on the complainant. He had filed his evidence wherein he stated that the fracture may not unite due to many reasons, may be due to comminution of fragments, due to presence of multiple fragment, high velocity injury to the area, gross displacement of fracture fragments, the stability provided after the surgery, subsequent immobilization done in the post operative period, patients general health and adequate exercise done by the patient. He stated that due to multiplicity of fragments the stability can only be provided between main two fragments. If the fracture is adequately stabilized subsequent care by the patient in getting proper physiothreapy is essential because it brings good blood supply to the fractured area. He stated that considering the history of post operative management and injury, it looked that adequate care had been taken in treating the patient. Dr. R.K. Sen stated further that it depends upon the type of fracture and the current mode of management of fracture that decides the type of implant. The implant, which was considered best a decade back, was not so considered five years ago.

10. According to him, plating is best in most fractures. The non-union rate is high in non-dynamized implants. The fracture is not allowed to unite due to inter locking of fragments in inter locking nails. While in simple nails, the sliding of fragments can occur over the nails, which is not possible in inter locked nails. The percentage of non-union is 4% to 15% in inter locking nails, 4% to 10% in plates and 2% to 4% in non-locked dynamic nails. He further stated that according to the history of the complainant, POP cast was not done after the previous surgery in the beginning and according to his opinion, intramendulary fixation along with POP cast could have minimized the inter fragmentary movement across the fracture. He stated that there were no rules regarding mode of management because they depend upon the patient and nature of fracture. The opinions have varied with the passage of time. For humerus fractures plating is best in these days. According to the history available to him, plating was not done in the case of the complainant during the first surgery. He treated the complainant with plates, which successfully led to union of the fracture. Most fragments had united after the first surgery except for one place. During surgery, Dr. Sen freshened the site and stabilized and bone grafted. The surgery done by him on complainant was successful. He, however, stated that bone grafting was not done in the first surgery generally. In the first surgery, bone grafting is not preferred except for when the surgeon feels that fragments have lost their muscle attachment and blood supply.

11. Dr. Parveen Chawla who also examined  the  complainant  appeared  as C.W.- 2. He examined the complainant Shri Randhir Garg on 6.6.1999. The opinion of Dr. Chawla was based on clinical examination and Radiological reports. He examined the complainant Shri Randhir Garg on 8.6.1999 as OPD patient. According to him, as far as he remembered, X-ray pertained to Mr. Randhir Garg though the Radiological report Ex. C is placed on record, which did not bear the name of Shri Randhir Garg. The patient was sent to Radiologist for X-ray. The same was placed on record as Ex. R as per the desire of the learned Counsel for the O.P.

12. Regarding the surgery, which was necessitated in the case of the complainant, Dr. Parveen Chawla stated that the purpose of operation in case of communicated fracture is that fragments of bones are approximated and immobilized. He stated that it was correct to suggest that it is surgeons prerogative to decide the mode of fixation and the nature of implant to be used. It is correct that intra-medullary nailing is being done in these days in case of long bones. He also stated that delayed union or non-union of bones do happen in the course of surgery. It is also correct to say that primary bone grafting is not done initially in the younger age. It is correct that bone grafting is done generally in the case of non-union of bones. It is very difficult to stabilize the comminuted fracture with a plate, however, it is possible. He further stated that it was possible to give an opinion at the time of operation as to what type of implant is to be used in fracture. Healing of fracture is a Biological phenomenon and it depends upon many factors like type of injury, velocity of trauma and age has no bearing on the fracture union except in the small children where the re-union is quick.

13. To a specific question regarding the operation conducted on Shri Randhir Garg being inadequate, Dr. Parveen Chawla stated that it was incorrect to say that rush nails are used in these days. It is used if better implant are not available. These days we do use interlocked nailing.

14. The complainant also filed his affidavit and he was cross-examined by the learned Counsel for the O.Ps. Besides Dr. R.K. Sen, O.P. No. 2 - Dr. Kudeep Singh filed his affidavit and was subjected to cross-examination by the learned Counsel for the complainant. During cross-examination, he stated that he has passed his MBBS in 1958 from Nagpur University. Regarding the normal practice observed by him, he stated that approximation is done only on estimate basis. It is required from the patient whether he is sensitive to some medicine so generally no tests are done and in the present case no sensitivity test was carried qua Betadine. He had stated that the patient developed rashes on the skin where Betadine was applied by him and thereafter patient was put on steroids, which was the best treatement. He stated that generally in young age primary bone grafting is not done and in the present case, he did not think that it was required at that time. He, however, stated that he was aware of the fact that POP cast could have minimized the inter-fragmentary movement across the fracture but it was deferred for 8-10 days till the skin of the patient was normal. The implants to be put in the patient are best decided by the operating surgeon depending upon the suitability considering the operating and post operative consequences. According to the statement of Dr. Kuldeep Singh, he was aware that inter-locking nails are not used in these days. He also stated that healing of the fracture is a biological phenomenon. Fractues are known to go for non-union with any type of transplant/implant that are used. When non-union takes place bone grafting is done. He stated that he had advised the patient for second surgery with bone grafting and he preferred the patient to go to PGIMER and that job was done by the PGIMER. He stated that he had all the provisions with him when he was operating but there is nothing like modernity in choosing implant and it is according to the suitability. The witness further stated that result of inter-locking nails in the humerus bone is not as good as with simple nails so he did not prefer inter-locking nails.

15. The evidence, which has been led by the complainant clearly goes to show that the best results are obtainable percentage-wise in non-locked dynamic nails, which ranges from 2% to 4% of non-union. The percentage of non-union is highest in inter-locking nails. In case of plates being used, the percentage of non-union is 4% to 10%. It is thus quite evident that Dr. Kuldeep Singh did not resort to the use of either places or non-locked dynamic nails, which increased the percentage of non-union in a range of 4% to 15% percentage. The patient Shri Randhir Garg, complainant suffered non-union and it was because of the opinion of Dr. Kuldeep Singh that inter-locking nails be used as against plates or non-locked dynamic nails.

16. It is evident from the statement of Dr. Kuldeep Singh that he himself advised the second surgery and it clearly shows that the first surgery was not successful as it did not bring the desired result in the case of the complainant. The complainant was taken to PGIMER and there a fresh surgery took place, which was quite successful and the patient recovered and become almost normal.

17. It is now well settled principle of law that a doctor has a choice of accepting a particular patient for treatment and he is expected to treat with the expertise, which he possesses and if he is deficient in doing so, which causes the necessity of a second surgery as first surgery being not successful, the doctor would be medically negligent notwithstanding the fact that the line of treatment chosen by such a doctor could possibly be one of the treatment though in the instant case, there is evidence of expert, which shows that proper line of treatment was not chosen and given to the patient i.e., complainant Shri Randhir Garg. The mere fact that Dr. R.K. Sen who was examined by the O.Ps. and who had operated upon the complainant at PGIMER and that surgery was quite successful, stated in detail about the steps taken by him in performing the second operation at PGIMER. The statement of Dr. R.K. Sen thus does not support the case of the O.Ps. that they were right in choosing the line of treatment of the complainant Shri Randhir Garg.

18. So far as the use of Betadine is concerned, Dr. Kuldeep Singh stated that he had asked the patient about his being sensitive to any medicine and he replied in the negative and thereafter sensitivity test was not carried qua Betadine. When Betadine was applied, the complainant developed rashes on the skin, which showed that he was sensitive to the said medicine. We may point out that the treating doctor instead of feeling satisfied from the statement of the patient about his sensitive in respect of any medicine, was still required before using such a medicine, to conduct sensitivity test as to know whether he is sensitive to Betadine or not before it is actually administered. It was not asked specifically if the patient had been administered the said Betadine earlier and that he knew that he was not sensitive regarding its use.

19. Dr. R.K. Sen stated in his cross-examination that routine Betadine sensitivity test are not done in the PGIMER. Betadine sensitivity is known after his first application. Now when the application of Betadine for the first time showed that the patient was sensitive as he developed rashes on the skin, the treating doctor Dr. Kuldeep Singh should have prior to its application, tested the patient for his sensitivity to the aforesaid medicine Betadine. It is evident that after the medicine Betadine was applied and the reaction took place as rashes developed on the skin, the patient was put on steroids. This also amounts, according to us, a deficiency in service and negligence on the part of the treating surgeon.

20. The District Forum extracted the comments of the treating surgeon Dr. R.K. Sen, which were sought by Dr. O.N. Nagi, Head of the Department of Orthopaedic. It appears that the O.P. No. 2 Dr. Kuldeep Singh after receiving the legal notice from the complainant sought opinion of Dr. O.N. Nagi, Head of Department of Orthopaedic, PGIMER, Chandigarh who in turn asked comments from Dr. R.K. Sen, Orthopaedic Surgeon who conducted the second surgery at PGIMER on the complainant. The comments of Dr. R.K. Sen show that considering the history, post operative management problems and intra-operative observations, it looked that adequate care had been taken in treating the patient. He further mentioned that with regard to the humeral fracture pattern, it seems from the X-rays and intra-operative observations that the humeral fracture was very comminuted so it was probably very difficult to stabilize with plate fixation at that time. With intramedulary fixation, addition of POP cast could have minimized the inter-fragmentary movements across the fracture but local skin condition probably did not permit it. The behaviour of humeral fractures despite best possible treatment resulting in delayed and non-union is well known. Such a result in this case would not be thus uncommon. Considering all this, the management done seems adequate.

21. The learned Counsel for the complainant/appellant contended that Dr. R.K. Sen, who treated the complainant at PGIMER, when he performed the second surgery, treated him differently by using different methods during surgery, which brought relief to the complainant than the one, which was undertaken by the respondent No. 2- Dr. Kuldeep Singh and this by itself showed that the line of treatment given by the respondent No. 2- Dr. Kuldeep Singh was not adequate and rather it was done negligently without taking proper care and caution. The line of treatment, despite Dr. R.K. Sens report, learned Counsel for the complainant submitted, would not be in any way dilute the negligence on the part of respondent No. 2.

22. The learned Counsel for the complainant referred to the statement of Dr. Parveen Chawla, which we have also referred to and drew our attention specifically to his statement that the implant, which was considered best 10 years ago was not considered so after 5 years. He also referred to the opinion of Dr. R.K. Sen that intramendulary fixation along with POP cast could have minimized the inter fragmentary movement across the fracture. He referred to the statement of Dr. Sen that there were no rules regarding mode of management because they depend upon the patient and nature of fracture and opinions varied with the passage of time.

23. The District Forum mentioned in the impugned order that POP was applied after 8-10 days after the skin of the patient was normal but this does not show that this line of treatment was adopted at the time when it was required to be done. The District Forum considered under different heads such as ‘Failure of adequate immobilization, ‘Healing of injury, ‘Systemic Therapy, ‘Intramedullary fixation and ‘Non-union in rather great detail and concluded at Page 22 of the impugned judgment and order, inter alia, as under :

“The complainant has repeatedly submitted that O.P. No. 2 has made wrong statement besides that he also wrote letter to Dr. O.N. Nagi of PGI simply to seek undue favour from him. It is also stated that Dr. Ramesh Sein of PGI appeared as witness to give undue favour to O.P. No. 2, therefore, in view of the aforementioned facts the statement of O.P. No. 2 and that of other witnesses examined by him is liable to be totally discarded. In support of his contention the complainant has placed reliance on a case titled Manohar Singh etc. v. Smt. Joginder Kaur etc., 1981 CLJ (Civil) 162 to stress the point that where the main witness proved to be a lier on the face of record is not worthy credit and finding of the Trial Court ignoring the same was set aside. In the cited case under the Indian Succession Act, while dealing with the Section 276 while deciding application for letters of administration of a Will the Trial Court ignored the pleadings, circumstantial evidence, documentary evidence, photographs and the conduct proving the Will and showing the relationship of the legatees with the executor of the Will. However, in the instant case the learned Counsel for complainant has miserably failed to convince that on what ground statement of O.P. No. 2 is not credible or reliable. Mere discrepancy in the statement of O.P. No. 2 from the record, if any, placed on the file cannot be termed as unreliable statement of the witness. Similarly there is not an iota of evidence on record that O.P. No. 2 has tried in any manner to influence Dr. O. N. Nagi of PGI or that Dr. Ramesh Sein who operated upon the complainant appeared as witness in order to support O.P. No. 2. It is apparent from the statement of Dr. Sein that he has mainly deposed about the treatment and the operation done and further the statement of operating doctor was necessary for proper adjudication of the case.”

24. After carefully considering the material placed on record, we find that the O.P. No. 2 - Dr. Kuldeep Singh did not adopt the proper and well accepted line of treatment during surgery of the complainant, which was done subsequently on 22.7.1999 by Dr. R.K. Sen at PGIMER, Chandigarh. We find it quite interesting to note that though Dr. R.K. Sen who led the team of surgeons during the surgery performed on the complainant adopted a different method of treatment, which we have referred to in the earlier part of our order and which surgery proved to be quite successful and which was quite different from the one done earlier on 4.3.1999 at the respondent-Inscol Hospital by the respondent No. 2- Dr. Kuldeep Singh, entered as a witness in this case and tried to support the line of treatment adopted by Dr. Kuldeep Singh, quite ignoring the fact that Dr. R.K. Sen himself had found the earlier surgery not satisfactory and not providing complete relief to the complainant. The finding of the District Forum that the application of one of the approved methods did not constitute any deficiency in service or negligence on the part of the treating surgeon is contrary to the material placed on record.

25. In our considered opinion, the complainant has successfully proved it to be a case of medical negligence on the part of the respondents and due to which he suffered and which also led to the second surgery, which was performed on the complainant at PGIMER on 22.7.1999.

26. Now coming to the compensation claimed by the complainant, a sum of Rs. 4,21,789.20 p. has been prayed to be awarded against the respondents on account of loss to the complainant for gross negligence and reprehensible deficiency of service on the part of O.P. No. 2. Apart from this amount, which is claimed as medical expenses, loss of business and getting treatment, which is still continuing a sum of Rs. 25,000/- has been claimed on account of expenditure on petrol and other various items during the treatment. The total amount claimed in the relief is Rs. 4,90,000/-. Annexure C-1 contains particulars of the expenses incurred by the complainant over the treatment. A sum of Rs. 9,170/- has been charged by the respondent- Inscol Hospital on 6.3.1999 besides another sum of Rs. 17,000/-. On 4.3.1999, the respondent-Inscol Hospital charged a sum of Rs. 10,000/-. The respondent-Inscol Hospital thus charged a total sum of Rs. 36,170/-. Besides this amount, a sum of Rs. 3,518/- were charged at S.K. Diagnostic Centre, Verma Dental Clinic, Chandigarh, Ramesh Medical Hall and Jindal Medical Hall. The remaining expenses were incurred over the treatment at PGIMER, Chandigarh and the amount paid at PGIMER is of a sum of Rs. 100/- (Rs. 25/- on 22.7.1999, Rs. 50/- on 19.7.1999 and Rs. 25/- on 14.9.1999). The medicines were purchased during the treatment at PGIMER from different shops and the total of these medicines purchased for treatment is Rs. 27,529/- (From Serial No. 13 to 21, 25, 29 and 30). A total sum of Rs. 67,617/- comprising of the aforesaid amounts was spent over the treatment at the respondent Nos. 1 - Inscol Hospital and subsequently at PGIMER, Chandigarh. The amounts, which were spent at GMCH, Sector 32, Chandigarh prior to the operation at respondent No. 1 - Inscol Hospital are not admissible to the complainant as the same were not spent as a result of any involvement in the treatment of the complainant at the respondent No. 1 - Inscol Hospital.

27. Apart from it, the amount of Rs. 24,000/- claimed as the amount paid to the driver and a sum of Rs. 25,000/- spent on petrol and other miscellaneous expenses up to 30.9.1999 and a sum of Rs. 1,00,000/- as loss of projects in pipelines and Rs. 2,000/- on account of loss of income cannot be awarded to the complainant as they have no nexus to the medical negligence on the part of the respondents and these amounts cannot be adjudicated and awarded in summary jurisdiction given to the Consumer Disputes Redressal Agencies. The complainant may claim any damages on this account against the respondents in an appropriate Forum like the Civil Court by filing an appropriate petition there.

28. Accordingly, the appeal is accepted partly to the extent that the complaint is partly allowed. A sum of Rs. 67,617/- is awarded as compensation to the complainant/appellant against the respondents. The respondents will be jointly and severally liable to pay the aforesaid sum to the complainant, which shall be paid within a period of two months from the date of receipt of certified copy of this order failing which the aforesaid sum of Rs. 67,617/- shall carry interest @ 6% per annum till the date of actual payment. The costs of complaint as well as appeal is awarded at Rs. 3,000/- to be paid by the respondents/O.Ps. to the complainant/appellant.

29. Copies of this order be sent to the parties free of charge.