National Consumer Disputes Redressal
Deep Hospital & Research Centre vs Yogesh on 19 January, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2732 OF 2011 (Against the Order dated 14/07/2011 in Appeal No. 66/2004 of the State Commission Rajasthan) 1. DEEP HOSPITAL & RESEARCH CENTRE Near Tempo Stand, Kahtipura Road, Jhgotwara Jaipur Rajasthan ...........Petitioner(s) Versus 1. YOGESH R/o Plot No - S -55, Kulwant Colony, Jhotwara Jaipur Rajasthan ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
For the Petitioner : Ms. Pratiksha Sharma, Advocate For the Respondent : Mr. Jitendra Kumar, Advocate
Mr. Nair Renjith Ramesh, Advocate
Dated : 19 Jan 2016 ORDER
JUSTICE V.K. JAIN, PRESIDING MEMBER
The complainant, a child aged about 13 years at the time of filing the complaint fell from a tree on 11.02.1997 and was taken to the hospital and Research Centre owned by the respondent Dr. Anil Gupta. According to the complainant after X-ray done by Dr. Rekha Gupta, working in the aforesaid hospital, he was informed that there was a fracture in his right hand. He was admitted in the hospital and after some treatment he was informed that his bone had been set at the right place by adjusting it and dressing had been done. He was also informed that there was no need of applying any plaster. According to the complainant, despite treatment by the respondent, his pain did not subside and he could not sleep in the night. On 14.02.1997, the bandage of the hand of the complainant was opened on his request and it was found that the bone was clearly visible and the hand was badly infected with pus. The complainant was discharged from the hospital of the respondent after recovering the hospital charges from him. The complainant was then taken to SMS hospital on 14.02.1997 itself. He was informed in SMS hospital that his right hand had been damaged and badly infected and there was no blood circulation in his fingers, which has become numb. The doctor had to amputate the right hand of the complainant. According to the complainant, had the respondent applied a 'pucca' plaster instead of 'kuchcha' plaster at appropriate time, his hand would not have got infected and later amputated. Alleging negligence in his treatment by the respondent, the complainant approached the concerned District Forum by way of a complaint, seeking compensation as well as the reimbursement for the expenditure incurred on his treatment.
2. The complaint was resisted by the respondent. It was stated in the reply that there was sand and cow dung at the place where the complainant had fallen from tree and therefore, when he came to hospital, his wound was cleaned. Thereafter, he was examined by an Orthopaedic surgeon Dr. Satyendra Sharma. Kuchcha plaster was then applied on his right hand. Since there was injury on the forehead as well as below the eye of the complainant, who was also vomiting, neither anaesthesia could be given to him nor his bone could be set. Since external injury was visible on his body, pucca plaster could not have been applied immediately. On the second day, the hand of the complainant was again cleaned and thereafter, the bone was set and again kuchcha plaster was applied. According to the respondent, no complaint was made by the patient on 13.02.1997. It is further alleged that on 14.02.1997, the patient complained of pain and on critical check up, it was found that the upper portion of the fingers of his hand had turned bluish and blood circulation had reduced. Kuchcha plaster was removed immediately and it was noticed that infection had set up in the hand of the patient. Diagnosing this to be gas gangrene, treatment was started accordingly.
3. Vide its order dated 22.11.2003, the District Forum dismissed the complaint, holding that there was no negligence in the treatment of the complainant. Being aggrieved, the complainant approached the concerned State Commission by way of an appeal. Vide impugned order dated 14.7.2011, the State Commission allowed the said appeal and directed the respondent to pay compensation of Rs.50,00,000/- to the complainant / respondent, along with Rs.50,000/- for mental agony and other expenses. Being aggrieved from the order of the State Commission, the respondent is before us by way of this revision petition.
4. It is an admitted position that the complainant was admitted and treated in the hospital of the respondent. Therefore, the only question which arises for consideration in this petition is as to whether there was any negligence in the treatment of the complainant in the hospital of the petitioner or not.
5. It was noted by the State Commission that the petitioner had not filed affidavit either of Dr. Satyendra Sharma, the Orthopaedic surgeon, who, according to the petitioner had examined the complainant nor the affidavit of Anaesthetist Dr. Ashish Shah. Since it is an admitted position that the gangrene had developed at the wound of the complainant, the State Commission was of the view that this could be possible only if either the wound had not been cleaned properly or temporary plaster was not properly put on the hand of the complainant. Thus, in the opinion of the State Commission, had proper care been taken in the treatment of the complainant in the hospital, he would not have developed Gas Gangrene and consequently his hand would not have been amputated.
6. It is not in dispute that gas gangrene had developed on the hand of the complainant which therefore had to be amputated in SMS hospital. The opposite party has not explained, either in its reply or during the course of arguments, as to why gas gangrene came to be developed on the hand of the complainant. The petitioner himself being a doctor running the hospital in which the complainant was treated and having access to the entire medical record of the complainant ought to have told this Commission as to why gas gangrene developed on the hand of the complainant.
7. Gas gangrene is a fast spreading and potentially life threatening form of gas, caused by a bacterial infection which causes toxins to release the gas that leads to tissue death. The symptoms of gas gangrene include swelling, and treatment includes antibiotic and surgery to remove the dead tissue. This condition spreads very fast and therefore, changes that occur on the affected area of the skin, which are bound to be noticed by the treating doctor soon after the onset of the symptoms. The investigation to confirm gas gangrene comprises blood, fluid and tissue culture to test for bacteria and imaging test such as MRI and CT Scan to check the presence of gas in the tissues. If gas gangrene develops, immediate treatment is necessary. The treatment includes high doses of antibiotic and surgical removal of the infected tissues. As a last resort, amputation of a limb is performed in order to prevent infection from spreading to the rest of the body.
8. It has come in the reply filed by the petitioner that swelling on the hand of the complainant was noticed on 13.2.1997 itself. Admittedly, neither the requisite investigations to confirm gas gangrene were carried out on that date nor is there any evidence of heavy antibiotic having been administered to the complainant. The doctor, on noticing the swelling, ought to have immediately investigated the possibility of gas gangrene, which was quite a probability in a case of this nature. Had the requisite investigations to confirm the gas gangrene been done, and/or treatment for gangrene started on 13.2.1997 itself, there is a possibility of the amputation having become avoidable. This is not the case of the petitioner that, once gas gangrene develops, amputation cannot be avoided in any case whatsoever. The least required from the doctor was to make all possible attempts to avoid amputation by starting high doses of antibiotics and carrying out surgical removal of the infected tissue, as soon as the swelling was noticed on 13.2.1997.
9. Though, the petitioner claims to have x-rayed the hand of the complainant on 13.2.1997, no MRI or CT scan was attempted and there is no evidence of any blood, fluid and tissue culture having been done to test for the presence of the Clostridium perfringens and / or other bacteria which causes gas gangrene. In fact, even the x-ray was done in the evening and not in the morning of 13.2.1997.
10. The State Commission has taken the view that gas gangrene would not have developed, had the wound of the complainant been properly cleaned and had the plaster been applied properly on his hand. I however, need not go into this aspect of the matter, as the failure of the petitioner to take requisite steps for diagnosis the treatment of gas gangrene, despite having noticed swelling, one of the known symptoms of gas gangrene, on 13.2.1997 itself, proves negligence in the treatment of the complainant.
11. In Union of India & Ors. Vs. Master Karan, RFA 307 of 2008, decided by the Delhi High Court on 18.5.2012, the plaintiff fell down, while playing and sustained fracture in his left hand below elbow. He was taken to RML hospital, where he was X-rayed and his hand was plastered. Since he could not sleep in the night, he again visited the hospital on the next day and was examined by the doctors, who said that everything was alright. Since the pain did not subside, the plaintiff again came to hospital on that date when the doctors cut his plaster and found pus and blood at the injury. However, instead of giving gas gangrene treatment, his hand was re-plastered. When he again came to the hospital on the next day on account of the pain having persisted, he was told that his case had been spoilt by the previous doctor in a shoddy performance and on the next day his left arm had to be amputated. He claimed compensation quantified at Rs.20.00 lacs from Union of India. The High Court noticed that no efforts to diagnose the gas gangrene were made either on 11th or on 12th May, 2000 despite the complainant complaining of excessive pain. The High Court held that the defendants were negligent in applying the plaster on 11.05.2000 and again on 12.05.2000 since plaster should not have been applied on limb as it creates low oxygen condition in which gas gangrene bacteria thrive rapidly being an Anaerobic Bacteria. It was felt that the limb of the plaintiff could have been saved had the treatment been started on 12.5.2000 itself. The High Court held that by failing to start the treatment on 12.5.2000, the defendant's conduct fell below the standard of reasonable degree of skill and care expected from a reasonable competent practitioner in their field. The complainant in that case was a 12 years old child, whose left upper limb had to be amputated. He was awarded compensation quantified at Rs.10.00 lacs.
12. For the reasons stated hereinabove, I find no good reason to interfere with the finding recorded by the State Commission, holding the petitioner negligent in the treatment of the complainant. I however, find that the compensation awarded by the State Commission was much much above the amount claimed by the complainant. A perusal of the complaint would show that the total compensation claimed by him was Rs.4,63,787.50. The State Commission therefore, could not have awarded compensation amounting to Rs.50.00 lacs to him.
13. Considering all the facts and circumstances of the case, I direct the petitioner to pay compensation quantified at Rs.4.00 lacs to the complainant, along with interest on that amount @ 9% per annum from the date of filing of the complaint, till the date of payment.
The revision petition stands disposed of.
......................J V.K. JAIN PRESIDING MEMBER